*

Honorable Levin H. Campbell, Senior U.S. Circuit Judge for

the First Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-6712.

Anita ROBINSON, Mary K. Dupree, Cynthia L. Evans, Ernestine M.

Owens, and Myra Garth-Swoope, and the class they seek to represent,

Plaintiffs-Appellees,

Angela B. Taylor, Christine Williams, Patrick Harris, and Gale

Rena Musing, Plaintiffs-Intervenors-Appellees,

v.

BOEING COMPANY, d/b/a Boeing Defense & Space Group, DefendantAppellant.

April 5, 1996.

Appeal from the United States District Court for the Northern

District of Alabama. (No. 92-C-2004-S), U.W. Clemon, Judge.

Before TJOFLAT, Chief Judge, RONEY and CAMPBELL*

, Senior Circuit

Judges.

PER CURIAM:

In this interlocutory appeal, defendant, Boeing Company, d/b/a

Boeing Defense & Space Group, already represented by two law firms,

challenges the denial of its motion for leave to associate

additional counsel from yet another law firm for its defense team

in this company-wide discrimination suit when grant of the motion

would require the recusal of the trial judge who has managed the

litigation for fifteen months. We affirm.

The suit was originally brought in August 1992 by a single

plaintiff, Anita Robinson, who alleged racial discrimination

regarding Boeing's terms and conditions of employment and that she

was retaliated against for bringing charges against the company.
The case was assigned to The Honorable U.W. Clemon. As a result of

complaint amendments and additional party interventions, the

lawsuit evolved over a six-month period to include nine plaintiffs

and an alleged class charging race and sex discrimination with

respect to all of Boeing's employment practices.

Boeing sought to associate members of the law firm of

Constangy, Brooks & Smith as additional trial counsel cognizant of

the fact that Judge Clemon's nephew was associated with the firm

and the grant of defendant's motion would most certainly lead to

Judge Clemon's recusal pursuant to 28 U.S.C. § 455(b)(5)(ii) and/or

(iii). See United States v. Kelly, 888 F.2d 732, 745-46 (11th

Cir.1989).

Boeing claimed to have based its choice of substitute counsel

on the additional attorneys' knowledge of employment-related

matters and the vast resources of the firm that would enable it to

handle the complexities of this case. Plaintiffs asserted Boeing's

true motive was to "judge shop."

A different district judge, Judge Robert B. Propst, finessed

the argument that defendants were motivated by the desire to get

the trial judge off the case, and said:

... [T]his court has concluded that it should not decide

this motion by determining the issue of motive. The court

concludes that the issue in this case should be decided based

on the age of the pending action at the time the motion was

filed. Either as a matter of law or court discretion, the

court concludes that the fact that the case has been pending

for fifteen months at the time the motion was filed militates

against granting it in the absence of an overriding need for

a particular lawyer.

If the issue is truly not one of "judge shopping," the

denial of the motion will not adversely affect the defendant.

There is no shortage of law firms available to replace the

Lanier-Ford law firm. The fact that a case has been pending
a considerable period of time lends itself to potential abuse

after there has been an opportunity for considering rulings,

discussions, etc. of a trial judge. No matter how extensive

the discovery may be, the true motive will be elusive,

non-objective and not likely truly ascertainable. The

discovery issues, especially those involving attorney-client

privilege, are complex, and further discovery would not likely

result in a confession or "smoking gun." When there has been

a passage of fifteen months, the problem is exacerbated. When

there has been such a passage of time, the burden to establish

the right to join a disqualifying firm is greater. The court

concludes that the motion should be denied.

The court then denied a motion for reconsideration but amended

its order with a § 1292(b) certification. We granted leave to

appeal.

 After full briefing and oral argument, we conclude that the

denial of the motion to add counsel was within the discretion of

the trial court, and that it did not abridge any fundamental right

to counsel of choice.

In recognition of the trial court's superior understanding of

local conditions and litigation tactics at the district court

level, this Circuit has long held that district judges "enjoy broad

discretion to determine who shall practice before them and to

monitor the conduct of those who do." United States v. Dinitz, 538

F.2d 1214, 1219 (5th Cir.1976), cert. denied, 429 U.S. 1104, 97

S.Ct. 1133, 51 L.Ed.2d 556 (1977). Courts have long accepted that

resulting delay may justify the exercise of a trial judge's

discretion to deny substitute counsel in the midst of litigation.

E.g., United States v. Kerris, 748 F.2d 610 (11th Cir.1984) (not

abuse of discretion to deny request for substitute counsel made on

the eve of trial); United States v. Young, 482 F.2d 993 (5th

Cir.1973) (the day of trial); Linton v. Perini, 656 F.2d 207 (6th

Cir.1981) (week before trial), cert. denied, 454 U.S. 1162, 102
S.Ct. 1036, 71 L.Ed.2d 318 (1982).

 The factors the trial court can fairly consider in deciding

whether to allow substitute or additional counsel in the exercise

of this discretion include the fundamental right to counsel, the

court's docket, the injury to the plaintiff, the delay in reaching

decision, the judicial time invested, the expense to the parties

objecting, and the potential for manipulation or impropriety.

 The twist in this case is whether delay caused by the

disqualification of a trial judge, rather than delay caused by the

need for time for preparation by substitute or additional counsel,

somehow takes the decision outside the broad discretion afforded

trial courts in these matters. No authority has been provided to

us, nor have we found any authority, which would suggest anything

but that delay for any reason is sufficient to bring the case

within the exercise of discretion. In fact, the disqualification

of a judge implicates several factors informing the judge's

discretion, like judicial time spent, the court's docket, and the

potential for manipulation. Judicial resources in this country are

limited. It is incumbent on lawyers as officers of the court, as

well as judges, to guard against actions and procedures to avoid

the useless expenditure of judicial time. Although time alone

would not necessarily reflect judicial attention, and consideration

should be given to how much judicial work has actually been

invested in a case, that evaluation is appropriately within the

province of the trial judges. Not only is it the time a judge

might have spent on rulings on the case, but the condition of

crowded dockets and priorities on other judges' calendars. These
are matters known to local judges and do not lend themselves to

specific findings.

The deciding judge was obviously concerned, as are other

judges of that district, about the possibility that in this

district the choice of lawyers may sometimes be motivated by a

desire to disqualify the trial judge to whom the case has been

randomly assigned, see Memorandum Opinion and Order of Judge

William M. Acker, Jr. in Crowder v. BellSouth Telecommunications,

Inc. et al., CV95-AR-1270-S, attached as an Appendix hereto. This

potential for manipulation or impropriety may be considered,

without making specific findings, a difficulty the deciding judge

reflected upon in his opinion.

 In this case, the deciding judge, fully aware of all the

appropriate factors, held that the resulting change of judges was

sufficient reason for denial "in the absence of an overriding need

for a particular lawyer." Needless to say, a showing of overriding

need, rather than just convenience, a need that would reflect upon

the litigant's ability to have its case fairly presented, rising to

constitutional due process concerns, would trump both time delay

and the loss of prior judicial activity.

Nothing in the briefs and oral argument in this Court has

revealed error in the district court's decision that defendants

failed to show such a need. Although there were no detailed

findings of fact concerning the need for these particular lawyers,

we are satisfied that the district judge fully considered the

matter.

It appears that the district judge applied the appropriate
standard of law, was not clearly erroneous on the facts, acted

within its discretion, and must be affirmed.

AFFIRMED.

APPENDIX

IN THE UNITED STATES

DISTRICT COURT FOR

THE NORTHERN DISTRICT

OF ALABAMA

SOUTHERN DIVISION

Sandra Crowder, Plaintiff,

v.

BellSouth Telecommunications, Inc., et al., Defendants.

Civil Action No. 95-AR-1270-S.

MEMORANDUM OPINION AND ORDER

At the hearing conducted on June 1, 1995, in regard to the

motion of defendant, BellSouth Telecommunications, Inc., for a

continuance of the hearing on the application of plaintiff, Sandra

Crowder, for a preliminary injunction, the court advised the

parties that it had ordered the Clerk to provide it a report of all

cases filed in this court from January 1, 1993, until the present,

which cases were initially assigned to Hon. U.W. Clemon and in

which any attorney with the firm of Constangy, Brooks and Smith

thereafter appeared for a defendant, causing Judge Clemon's recusal

and a reassignment of the case to another judge of the court. The

above-styled case is the first such case reassigned to the

undersigned. The other such cases reflected in the Clerk's

records, in the order of their filing are:

Hicks v. ACIPCO, 93-CV-157-S

Williams v. AmSouth Bank, 93-CV-249-S
Lambert v. University of Alabama, 93-CV-691-W

Bryant v. Wal-Mart Inc., 93-CV-1658-S

Thomas v. Parker-Hannifin Corp., 94-CV-353-S

Pritchard v. Southern Company Services, Inc., 94-CV-475-S

Moore v. Southern Natural Gas, 94-CV-1164-S

Cooper v. ALFA Mutual Ins. Co., 94-CV-1202-W

Robinson v. Blue Cross and Blue Shield, 94-CV-1382-S

Volchko v. Z Man's Pizza, Inc., 94-CV-1920-W

Coughlin v. Baptist Medical Center, 94-CV-2310-S

Jarman v. Jim Walter Resources, Inc., 94-CV-3019-W

Richards v. Liberty National Life Ins. Co., 94-CV-3045-S

Johnson v. Krystal Company, 95-CV-406-W

Brock v. Compass Bancshares, Inc., 95-CV-683-S.

The court has no way of knowing what the incidence of

Constangy, Brook and Smith's being retained by defendants would

have been if the above-named cases had been originally assigned to

judges other than Judge Clemon, but an intelligent guess is that

the incidence would have been less. What, if anything, this court

should do about the matter will be for the entire court and not for

one judge. Meanwhile, the defendant in this case is represented by

competent counsel and shall file its answer (which may include a

motion to dismiss) by 4:30 P.M., June 12, 1995.

DONE this 2nd day of June, 1995.

 /s/ William M. Acker, Jr.

 WILLIAM M. ACKER, JR.

 UNITED STATES 

 DISTRICT JUDGE