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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TDC INTERNATIONAL CORP.,

Plaintiffs, Case No. 08-14792

-vJAE L. BURNHAM,

Defendants.

____________________________________/

MOTION HEARING

BEFORE THE HONORABLE ROBERT H. CLELAND

United States District Judge

Theodore Levin United States Courthouse

231 West Lafayette Boulevard

Detroit, Michigan

Wednesday, December 10, 2009

APPEARANCES:

FOR THE PLAINTIFF:

ARNOLD S. WEINTRAUB

Weintraub Group

28580 Orchard Lake Road, Suite 140

Farmington Hills, MI 48334-1569

(248) 865-9430

FOR THE DEFENDANT: MARK A. CANTOR

BRIAN S. TOBIN

Brooks & Kushman

1000 Town Center, 22nd Floor

Southfield, MI 48075-9871

(248) 358-4400

To Obtain a Certified Transcript Contact:

Christin Russell, CSR, RPR, FCRR, CRR - (313) 964-2026

Proceedings produced by mechanical stenography.

Transcript produced by computer-aided Transcription.

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TABLE OF CONTENTS

_____________________________________________________

IDENTIFICATION PAGE

Argument by Mr. Cantor.............................

Argument by Mr. Weintraub..........................

3

7

Rebuttal by Mr. Cantor............................. 10

Ruling by the Court................................ 11

Certificate of Court Reporter...................... 20

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Detroit, Michigan

December 10, 2009

10:00 a.m.

* * *

(Call to Order of the Court.)

THE CLERK: Calling case No. 08-14792. TDC

International Corporation vs. Jae Burnham.

THE COURT: And for Plaintiff, first?

MR. WEINTRAUB: Arnold Weintraub, your Honor.

THE COURT: Mr. Weintraub.

And for Defendant?

MR. CANTOR: Mark Cantor and Brian Tobin, your

Honor.

THE COURT: All right. Counsel, this is Mr.

Burnham, as Defendant, his counsel's motion to withdraw

from representation on this matter. And that is your

motion, principally, Mr. Cantor.

MR. CANTOR: Thank you, your Honor.

THE COURT: I have, in addition, just initially,

you would note here that I, in setting this hearing,

directed that the defendant should personally attend. And

you'll comment on that, I know.

MR. CANTOR: Correct, your Honor.

THE COURT: Go ahead.

MR. CANTOR: First of all, Mark Cantor. I think

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it may be defendant or defendants.

THE COURT: It is -- well, it's a d/b/a.

MR. CANTOR: Right.

THE COURT: Quick and Easy Moving and Quick and

Easy Moving, LLC.

MR. CANTOR: This is actually -- usually these

matters are fairly simple, motions to withdraw as counsel.

There's the state rule of ethics and the rules that govern

lawyers set forth conditions upon which a lawyer can

withdraw from representation. Usually there's breakdown in

the attorney/client relationship, very often relates to not

being paid, disagreement, things like that.

This case is somewhat unusual, which is why I

wanted to come down, is because one of the issues that's

been coming up a lot is when does representation terminate

of a client.

This one, the activities occurred shortly after

the final judgment in the case. But it's interesting, I've

settled cases over the last 20 years here. In the system,

I guess under this scenario, I'm still counsel for them,

even after the case has terminated, even though I may not

have done work for them in ten years. It's a very

interesting issue. It creates incredible liability issues

for us as well, which we go around with our carrier all the

time about do you send termination of representation

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letters once you finish a lawsuit, which even under today's

scenario wouldn't help me because I'm still of record in

the federal court system. So it's a very interesting

issue.

In this particular case, you ordered the

defendant to be here. The defendant was notified to be

here. And we have provided the Court with an e-mail we

received this morning. It was sent about four a.m. I

think we got it seven or eight a.m., in which he said

because of the weather, he said to please apologize to the

Court and let you know he could not attend. We provided

that to the Court and to Mr. Weintraub to review.

The interesting issue in this case is that after

we settled the case, we terminated our representation with

Mr. Burnham. We provided the Court with a copy of that

letter. Mr. Weintraub, we discussed this earlier, believes

that Brooks Kushman should have some obligation towards the

settlement because we signed the consent judgment, which by

the way, we were required to do under the rules anyway. In

fact, your office called me -- I was in front of Judge

Borman -- to come down here and sign it.

And it's a very interesting theory as to whether

a law firm can be held responsible for the settlement

obligation of a client in a lawsuit. I think I haven't

seen any authority for that, but I think it would be quite

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a unique ruling. And it would certainly change the nature

of attorney/client relationship to rule on something like

that. But I think at this point, that issue hasn't been

flushed out enough and I don't think it's appropriate.

More importantly, in this case, the basis for

withdrawal is more, that I believe, clerical in this case.

We provided a letter that we terminated our attorney/client

relationship after the case was settled. There's been

nothing in the record to contradict that, not by Mr.

Burnham who has received notice of everything, not by the

plaintiffs, who have also seen that letter. Our

attorney/client relationship ended upon sending that

letter. The only reason we're still of record is because

the way the federal court system works today, we seem to be

of record forever once you're in the electronic system.

So the question should be, should we be allowed

to withdraw. I believe we should, where there is no longer

an attorney/client relationship.

Now, the other issue that we discussed briefly,

and I just want to comment on it, in chambers, is that what

we knew or didn't know, what we discussed with Mr. Burnham

prior to the settlement being signed. Unfortunately, I am

not at liberty to discuss that with the Court. That did

constitute attorney/client communications. It is not my

privilege to waive. It's only Mr. Burnham's privilege to

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waive, and at least as of this point, it's not waived.

And I think your Honor's directive to have him

here would have been a good one, because then he could have

said what we discussed, it's his to waive. Or he could

have said to me, Mr. Cantor, go ahead, you're free to tell

them what we discussed. I can only tell you it has been my

practice for years, when I enter into something, I fully

expect that my client will comply with it. And I can't

really go much beyond that with this case.

Other than that, I think it's a very simple

motion. It's a motion to withdraw. And I think anything

beyond that is really beyond the scope of what we're here

for.

THE COURT: Thank you, Mr. Cantor.

Mr. Weintraub?

MR. WEINTRAUB: Yes, your Honor. Thank you.

From my perspective, I don't think it's that

simple, your Honor. One thing I must point out is that we

don't know Mr. Burnham's position about permitting Brooks &

Kushman to withdraw with respect to this matter. And I

think from my perspective, we've wasted the time by coming

down here without knowing Mr. Burnham's position.

I note that the e-mail came in at 3:50 this

morning. Obviously, someone was at Brooks & Kushman's

office this morning to retrieve this. And I think a simple

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phone --

THE COURT: No. That, I think the implication

would be that someone was at the sending address in order

to hit the button to dispatch it.

MR. WEINTRAUB: You got this this morning.

MR. CANTOR: Your Honor, we got it on our

Blackberries. And then Mr. Tobin was downtown, he went

over and printed it out at Kinko's.

THE COURT: I understand it was sent this morning

early.

MR. WEINTRAUB: Yeah, 3:50 a.m.

THE COURT: Okay.

MR. WEINTRAUB: I, if Mr. Burnham wasn't here,

then we could have been contacted and not spent the time to

come down here. But all that aside, because I still think

it's important to get Mr. Burnham's position as to the

propriety of the withdrawal.

I saw the letter for the first time that they

sent to Mr. Burnham when they attached it to the motion.

And I do believe it's the client's, just as much as its

counsel, their client's position as to whether or not he

wants them to withdraw. And I do believe that he has to be

here in order to fully resolve that issue.

But more importantly, your Honor, and as we

discussed in chambers -- and Mr. Cantor is right, there's

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really probably no authority on this. I've heard it

hypothesized by other judges that it is undoubtedly

counsel's ethical and moral obligation that when they have

a client execute a settlement agreement that's been

negotiated, that they have the obligation, as I said, to

ensure, at least to the best of their ability, that the

terms and conditions are complied with.

As this Court is aware, the settlement agreement

provided in paragraph 1 that there should be a charitable

donation in the amount of $1,500 to North Star Junior

Sailing of Harrison Township, concurrent with the execution

of this agreement. It didn't call for payouts, didn't call

for anything - concurrent.

I believe that counsel had the obligation to

assure that that check was posted, that the donation was

made concurrent with the execution, and that's what this

provided. This was done on June 10th. And I don't believe

that this settlement agreement was signed in vacuo.

And it was only I began badgering, and I'll admit

it was badgering, I kept on asking where is the check?

Where is the donation? And I was always rebuffed. In

fact, it went so far, your Honor, as I was told that Mr.

Burnham had contacted my client and left messages at phone

numbers. I have checked with my client. My client is

here. No such phone call was ever made. But most

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importantly, ab initio, the settlement agreement wasn't

complied with when counsel had their client execute the

settlement agreement. They knew or should have known that

there was no charitable donation made concurrent with the

execution of the settlement agreement. And, therefore, to

permit counsel to withdraw basically exonerates them for

the failure or more importantly, the misrepresentation

contained within the settlement agreement.

I would submit to the Court, that the failure to

have the concurrent donation was a clear misrepresentation,

which Mr. Burnham entered into and counsel, I would

suggest, knew or should have known of that, and therefore,

not permitted Mr. Burnham to sign the settlement agreement

or not have him sign the settlement agreement until that

donation was made.

Thank you, your Honor.

THE COURT: All right. Anything further, on any

of those points, Mr. Cantor?

MR. CANTOR: No, I don't believe so, your Honor.

I think it's, it's again, I go back to the point that is

that clients agree on their own. We are all big boys and

girls here. They signed it and they agreed to it. I can't

trace my clients afterwards to see if they are going to do

it. Every time Mr. Weintraub called, we communicated to

our client, we tried to make calls, we followed up the best

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we could. We did everything we could to try and do this,

you know. You met my client, your Honor, when he was here.

And I think that hopefully he'll come in next time you

order him to come in and you can ask him about this.

But the more interesting issue to me is they say

we don't have any indication whether Mr. Burnham objects or

consents to this motion to withdraw. He just communicated

with the Court. He didn't say anything about objecting to

it. He knows we're withdrawing. He's got a copy of our

motion. And he knows he was supposed to come here today.

And he knows he owes the money, too.

I mean, I think that what's happening here is

we're taking a very small matter and blowing it away out of

proportion. I mean, he'll have to comply with the

settlement and your injunction. And the fact we're no

longer counsel has nothing to do with that.

THE COURT: I agree upon consideration of the

motion and the presentations here that the Brooks Kushman

Firm should be permitted to formally withdraw. And I note

the July 8th letter, which followed two weeks following the

signing, the final signing of the injunction and the

agreement to settle. The July 8th letter indicated very

clearly to the defendant that there would be no further

representation provided. And all this is of course against

a background of counsel not having been paid in the first

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instance. I recollect that was one of the earlier things

that was noted.

Mr. Tobin had come in and continued at the

Court's urging to try to arrange an appropriate resolution

of the case, which had already been discussed. So to a

certain extent, it seems to me the firm and counsel's firm

has provided a service pro bono here for a civil litigant.

But irrespective of that, and frankly unrelated,

not motivated in any way by that observation, it is clear

to me that the defendant has an ample notification of this

hearing, has for whatever reason, whether the stated reason

or something else, not appeared today in order to be able

to state his view.

And I would say further that if he were in

agreement with the proposed withdrawal, the withdrawal

would be permitted. And unless he said something very,

very persuasive, were he in disagreement with the proposed

withdrawal, it would still be permitted. So the client's

view in this, under the present circumstances, would have

little weight in the Court's determination.

I set hearings such as this in motions to

withdraw from representation and direct that the client be

personally present on the record, principally to

communicate clearly with the client so that the client

knows without doubt what is going on and what will be the

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impending obligations, responsibilities, deadlines and so

forth, and to provide something of a last-ditch opportunity

for the client to say something that may be persuasive with

respect to whatever the basis may be, the stated basis of

the attorney's desire to withdraw from representation.

Sometimes it's lack of communicativeness, lack of

responsiveness to the attorney's requests for interviews

and documents and so forth. And the client does provide

something persuasive and says I have been lax, but I will

not be in the future. I intend to meet with my attorney

today. I have the documents with me. We can repair this

relationship and go on. In instances such as that, I've

said, well, let's just continue the representation at least

for the time being and see if it can be made to work.

In a case such as this, it's a different

scenario. I think that the case concluded, at least on

paper, and that shortly thereafter, Mr. Tobin's

representation concluded as well, also on paper and

functionally. It remains the client's obligation to live

up to what he signed, less so the attorney's obligation to

pay or to enforce the settlement, so forth.

But for reasons that I have expressed and reasons

stated in the motion, I'm going to grant the motion to

formalize the withdrawal of Mr. Tobin and Mr. Cantor and

the firm.

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The motion to enforce the judgment was filed on

the 18th of November, I note. The briefing was stayed on

the 3rd of December when I saw the motion to withdraw from

representation. The response to the motion to enforce the

judgment would have been due on the 14th of December, I

note. It would actually be overdue this week if it were

not construed as a dispositive motion. But I'm assuming

that it would have been due on the 14th of December, which

is Monday next.

I will today enter an order allowing withdrawal

of the defendant's attorneys; make it clear that the

defendant is either going to be in a position of

self-representation or he may rapidly acquire the services

of a substitute attorney; and make clear also that any

response to the motion to enforce the settlement agreement

shall be due on or before the 28th day of December, which

would be two weeks post deadline, assuming that I am

correct on my calculation of December 14th.

I recognize the possibility that on or before

that day, it is conceivable that a substitute attorney may

communicate with Mr. Weintraub and possibly arrange by

agreement some alternate date of response or something of

that nature. But it seems to me the likelihood of that is

slim. I only note that it has happened in some cases where

a substitute attorney has come in, asked for some

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additional time or other accommodation, as often as not,

it's granted.

Let me say one other thing. I had counsel in

chambers for an initial discussion on these motions upon

learning that the defendant had not personally appeared. I

was not aware that Plaintiffs were personally present

today. And although my thought was that we might have been

able to have resolved this motion without an actual

in-court formal appearance, that assumption was made based

upon a belief there was no one here but lawyers. And I

would not have called counsel in to try to get their

positions in an off-the record setting had I known that

clients were here.

And I think it is good to have an in-court, open

court, on-the-record discussions in these matters whenever

a client is here. And I just want to say that so the

clients understand there was nothing surreptitious intended

or out of the ordinary intended in that regard. And I

thank counsel for their courtesies in that respect as well.

Nothing else for the record, Mr. Weintraub, or do

you have anything?

MR. WEINTRAUB: A couple things, your Honor.

Knowing that you have set the date December 28th,

assuming arguendo based upon past conduct, if Mr. Burnham

fails to respond, does not get substitute counsel, will the

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Court then issue a contempt citation? And if so, we will

need an address for Mr. Burnham.

THE COURT: I think that there is an address in

that e-mail, isn't there?

Is there an address, Mr. Cantor.

MR. CANTOR: Yes, your Honor. We'll be happy to

provide Mr. Weintraub with a last known address we have for

him. In fact, here's the letter where we sent the motion

to him.

MR. WEINTRAUB: It's Grand Ledge.

MR. CANTOR: Yeah. Here is the letter.

MR. WEINTRAUB: I know. I have that.

MR. CANTOR: The termination letter is the same

address. The termination letter we attached, it's got his

address on there as well.

THE COURT: That is what you believe to be his

mailing address?

MR. CANTOR: Yes.

THE COURT: And of course, there's also the

e-mail address.

MR. CANTOR: Correct.

THE COURT: Which might not be a bad idea to

communicate.

MR. WEINTRAUB: The e-mail address doesn't

obviously help us if the Court is going to issue a contempt

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citation. It has to be served.

THE COURT: I'm sorry?

MR. WEINTRAUB: He would have to be served

personally.

THE COURT: Indeed. Indeed. If nothing happens

on or before the 28th of December, if there's silence, then

your motion already seeks -- let's see.

MR. WEINTRAUB: It seeks enforcement.

THE COURT: Enforcement in general, yes.

MR. WEINTRAUB: I can let --

THE COURT: I would, based upon your motion and

the way that it is phrased and the prayer for relief, after

the 28th of December, in the event that there is nothing

else filed, an appearance of an attorneys, a response to

the motion or something of that nature, I would issue an

order to show cause with a date set some time in January

why Mr. Burnham should not be held in contempt of court for

failure, among other things, failure to answer or to

respond to the motion and substantively failure or

apparently failure at least to comply with the settlement

agreement that he had signed. So I would trigger that on

my own.

It would also be important, however, for Mr.

Cantor, Mr. Tobin to ensure that the order that I enter

with the deadlines and the cautions that it's going to

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express is, in fact, provided to Mr. Burnham, and you

confirm that that be done. I will probably actually

include a proviso in the order that directs you as a

condition of withdrawing, to state on the record or file

something in the record, a notation that a copy of the

Court's order has been delivered to Mr. Burnham and that

you are assured that he has indeed received it.

MR. CANTOR: Your Honor, we plan on any thing --

once you issue the order, we plan on getting it to him as

best we can, where we know he is now. And we'll also try

to call him and tell him what you said today so he knows

how serious this matter is.

MR. WEINTRAUB: So the notices will be sent

certified return?

THE COURT: Well, you mean from the Court?

MR. WEINTRAUB: No. From Mr. Cantor to Mr.

Burnham.

THE COURT: To assure -- methodology is not so

important as to have confirmation from counsel on the

record, that counsel is assured that Mr. Burnham has in

hand the Court's order. That can be done six different

ways that I can think of.

MR. WEINTRAUB: Right.

THE COURT: The methodology is not as important

as the result. All right?

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MOTION HEARING - 12/10/2009

TDC INTERNATIONAL CORP. vs. BURNHAM - 08-14792

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MR. WEINTRAUB: Thank you, your Honor.

MR. CANTOR: Thank you, your Honor.

THE CLERK: All rise. Court is now in recess.

(Proceedings adjourned at 10:35 a.m.)

* * *

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MOTION HEARING - 12/10/2009

TDC INTERNATIONAL CORP. vs. BURNHAM - 08-14792

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CERTIFICATE OF REPORTER

As an official court reporter for the United

States District Court, appointed pursuant to provisions

of Title 28, United States Code, Section 753, I do hereby

certify that the foregoing is a correct transcript of

the proceedings in the above-entitled cause on the date

hereinbefore set forth.

s/ Christin E. Russell__

Christin E. Russell, CSR, RPR, FCRR, CRR

Federal Official Court Reporter

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