                Not for Publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                        For the First Circuit


No. 03-1816

                               REX FORNARO,

                         Plaintiff, Appellant,

                                      v.

                     WILLIAM S. GANNON, ET AL.,

                       Defendants, Appellants.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

          [Hon. Paul J. Barbadoro, U.S. District Judge]


                                   Before

                       Torruella, Circuit Judge,
                     Cyr, Senior Circuit Judge,
                      and Lynch, Circuit Judge,



     Rex Fornaro on brief pro se.
     Michael M. Lonergan, Margaret H. Nelson and Sulloway & Hollis,
P.L.L.C., on brief for appellees.


                            December 1, 2004
       Per Curiam.   Pro se plaintiff Rex Fornaro appeals a district

court order that granted the defendants summary judgment in this

legal malpractice action. Plaintiff maintains that the defendants,

New Hampshire attorney William S. Gannon and the law firm of

Wadleigh,    Starr   &   Peters,   PLLC      (WS&P),   negligently   litigated

certain retaliatory discharge claims against plaintiff's former

employer in the New Hampshire bankruptcy court.              While plaintiff

has correctly identified minor errors in the district court's

description of the evidence, we conclude that the court reached the

correct result and that the plaintiff's claims of procedural error

also fail.     Accordingly, we affirm, for the reasons explained

below.

                                       I.

       Between 1993 and 1994, plaintiff worked as a flight dispatcher

for Business Express Airlines (BEX).             On February 28, 1994, BEX

fired plaintiff.     Plaintiff secured Connecticut counsel and filed

a civil wrongful discharge action against BEX in the Connecticut

superior court.          Inter alia,    his    complaint   alleged   that   BEX

terminated plaintiff for reporting BEX's alleged violation of

flight safety statutes and regulations to the Federal Aviation

Administration (FAA) and to other agents, servants, or employees of

BEX.     Plaintiff sought compensatory and punitive damages on the

grounds that BEX discharged him for exercising his constitutional

rights to free speech, as protected by Conn. Gen. Stat. Ann, § 31-

                                       -2-
51q, and in violation of Connecticut's Whistleblower Law, Conn.

Gen. Stat. Ann. § 31-51m.1

     BEX    removed   plaintiff's        civil   action   to   federal    court.

Thereafter, an involuntary Chapter 11 petition for BEX's bankruptcy

was filed with the New Hampshire bankruptcy court, and plaintiff's

Connecticut    counsel      filed    a   proof   of   claim    on   his   behalf.

Plaintiff    then   hired    the    defendants   to   represent     him   on   his

retaliatory discharge claims against BEX in the New Hampshire

bankruptcy court.2    Attorney Gannon represented plaintiff in a two-

day trial of these claims. Plaintiff maintained that BEX fired him

because he made an anonymous telephone complaint about BEX's short-

staffing to the FAA on January 29, 1994, one month before his

discharge.     Testifying on behalf of BEX's Official Unsecured

Creditors Committee (OUCC), plaintiff's former supervisors at BEX

maintained that they fired plaintiff for chronic tardiness and that

they did not know about his anonymous complaint to the FAA when

they fired him.

     The bankruptcy court disallowed plaintiff's claim in its

entirety.    Assuming that both of plaintiff's statutory claims were

based on his anonymous complaint to the FAA, the bankruptcy judge


     1
        Plaintiff's complaint also asserted common law claims that
are not implicated in the instant appeal. We do not address them.
     2
        The defendants also filed a separate civil action against
BEX's officers and directors on plaintiff's behalf. The district
court dismissed that action, and this court summarily affirmed.
See Fornaro v. McManus, 187 F.3d 621 (1st Cir. 1998)(Table).

                                         -3-
ruled that plaintiff failed to prove that BEX terminated him in

violation of Conn. Gen. Stat. Ann. §§ 31-51m and 31-51q because the

evidence failed to show that BEX knew about that complaint before

it fired plaintiff.      The judge further concluded that even if BEX

had such knowledge, plaintiff's supervisors had established that

plaintiff's tardiness was a legitimate, non-retaliatory reason for

his discharge and that plaintiff had failed to prove that this

reason was a pretext.

       Still represented by attorney Gannon, plaintiff appealed the

bankruptcy court's decision to the district court.               While that

appeal was pending, plaintiff consulted attorney John Burwell

Garvey at present defense counsel's law firm (Sulloway and Hollis)

with    an   eye    toward   securing     representation   in   this   legal

malpractice    action.       Ultimately    attorney   Garvey    declined   to

represent plaintiff.         Seeking $10 million in damages, plaintiff

filed a pro se complaint for legal malpractice that alleged, inter

alia, that attorney Gannon negligently failed to present sufficient

evidence that BEX fired plaintiff in retaliation for his complaint

to the FAA.        Attorney Gannon promptly withdrew from plaintiff's

bankruptcy appeal, and the district court allowed plaintiff's pro

se motion to dismiss it.        Present defense counsel filed an answer

approximately four months after attorney Garvey had declined to

take plaintiff's side in this case.




                                     -4-
       At the initial pretrial conference plaintiff suggested that

defense counsel might have a conflict of interest because plaintiff

had consulted another attorney at Sulloway and Hollis before he

filed this lawsuit.            Defense counsel indicated that he had looked

into the matter and did not believe that he had a conflict of

interest.       The magistrate judge gave plaintiff until December 1,

2000 to file a motion to disqualify defense counsel. Plaintiff did

not do so.

       Approximately          one    year    later,       plaintiff     secured    his    own

counsel.3      The parties engaged in discovery and the court scheduled

a jury trial to begin on May 6, 2003.                        One day before the filing

deadline       for     the    defendants'           motion     for     summary    judgment,

plaintiff's       counsel       both        moved    to      withdraw.         Citing     only

"irreconcilable disputes and conflicts ... concerning litigation

strategy and other substantive matters," counsel informed the court

that plaintiff opposed withdrawal and requested an in camera

hearing.       Without holding a hearing, the district court promptly

allowed counsel's motions.

       Plaintiff       moved        for     reconsideration.             Inter    alia,       he

complained that neither of his attorneys had identified a reason

that       justified    his    withdrawal       with       a   trial    date     set    and    a

dispositive motion pending and that the court should hold a hearing


       3
       Plaintiff was represented by two attorneys in the district
court. A Massachusetts attorney served as lead counsel and a New
Hampshire attorney appeared as local counsel.

                                              -5-
and deny counsel's motions or, alternatively, extend all deadlines

by sixty (60) days.        After plaintiff's now-withdrawn attorneys

filed oppositions, the district court denied plaintiff's motion for

reconsideration    while     granting   his    request     for    an    extension.

Judged    from   the   time    plaintiff      submitted        his     motion    for

reconsideration, plaintiff received another sixty (60) days to find

new counsel and ninety (90) days to oppose the defendants' motion

for summary judgment.

     Stripped     of   his     own   counsel       by    the     order     denying

reconsideration, plaintiff sought to disarm his opponents by filing

a motion to amend his complaint to name Sulloway and Hollis and the

attorney he had previously consulted there, John Burwell Garvey, as

defendants.      Plaintiff     purported      to   state   a     separate       legal

malpractice claim against these attorneys on the ground that

attorney Garvey gave plaintiff bad advice about the statute of

limitations that governed his malpractice claim against attorney

Gannon.    In addition, plaintiff alleged that he gave attorney

Garvey privileged information to see if Garvey would represent him

in this case, that present defense counsel improperly had access to

that information, and that the district court should discipline

Sulloway and Hollis for unethical conduct.              The defendants urged

the court to deny plaintiff's motion to amend his complaint and to

sanction plaintiff for trying to force a change in defense counsel




                                     -6-
long after the deadline for filing a motion for disqualification

had expired.

     The magistrate judge denied plaintiff's motion to amend his

complaint as both "untimely (unduly delayed and prejudicial so

close to trial) and as futile (failing to state a cause of

action)."    Plaintiff filed a motion for reconsideration and a

motion for leave to file a reply to the defendants' objection to

his motion to amend his complaint that specifically asked the

district court to disqualify present defense counsel on the ground

that plaintiff had disclosed confidential information to attorney

Garvey.     Without   specifically   addressing   the   disqualification

issue, the magistrate judge endorsed plaintiff's proposed reply

"moot" in light of his previous order denying plaintiff's motion to

amend his complaint.      Plaintiff's motion for reconsideration of

that order remained pending.

     Thereafter, the district court docketed plaintiff's timely

opposition to the defendants' motion for summary judgment and the

defendants' reply to same.      Two days later, the district judge

announced that he had decided to grant the defendants' motion and

that an opinion justifying the court's decision would follow.

Plaintiff moved for reconsideration.        The court then issued an

unpublished opinion which ruled that none of the evidence that

plaintiff claimed attorney Gannon should have offered in the

bankruptcy court would have made any difference to the trial's



                                 -7-
outcome because that evidence still failed to show that BEX knew

about plaintiff's complaint to the FAA.      Simultaneously, the court

denied   plaintiff's   motion   for   reconsideration   of   the   summary

judgment order and his motion for reconsideration of the order

denying his motion to amend his complaint to add Sulloway and

Hollis and attorney Garvey as defendants. Plaintiff filed a timely

notice of appeal.

                                  II.

     On appeal, plaintiff argues that the district court erred in

granting the defendants summary judgment.       In addition, plaintiff

contends that the district court abused its discretion by allowing

his attorneys to withdraw and thereafter denying plaintiff's motion

to amend his complaint to make Sulloway and Hollis and attorney

John Burwell Garvey defendants. Repeatedly citing Pearson v. First

N.H. Mortgage Corp., 200 F.3d 30 (1st Cir. 1999), plaintiff implies

that he deserves a second bite at the apple because the district

court required him to proceed pro se involuntarily and because

defense counsel has a conflict of interest.       We disagree.

     We review the orders granting plaintiff's attorneys' motions

to withdraw only for an abuse of discretion.            See, Andrews v.

Bechtel Power Corp., 780 F.2d 124, 134 (1st Cir. 1985).        Plaintiff

contends that the district court abused its discretion by allowing

his attorneys to withdraw with a trial date set, a dispositive

motion pending, and without the requisite showing of "good cause"



                                  -8-
or a hearing on counsel's motions.                      Defendants say that the

district court did not abuse its discretion because the court gave

plaintiff sufficient time to find new counsel and respond to their

summary judgment motion.        The defendants have the better argument.

        Counsel's motions to withdraw were governed by New Hampshire

Rule of Professional Conduct 1.16.                In relevant part, this rule

provides    that:     "a   lawyer   ...    shall    withdraw      ...    if    (1)    the

representation        will   result   in        violation    of    the        rules   of

professional conduct ....[,]" see Rule 1.16(a), and that: "a lawyer

may withdraw ... if withdrawal can be accomplished without material

adverse effect on the interests of the client, or if:...(6) other

good cause for withdrawal exists."                  See Rule 1.16(b)(emphasis

supplied).      The Comments to this rule suggest that the district

court     had   the     discretion    to        treat     plaintiff's         counsel's

representation that "irreconcilable disputes and conflicts" existed

as sufficient cause for withdrawal without requiring counsel to

spell out the conflicts at an in camera hearing.4                   Moreover, here


     4
         The ABA Model Code Comments that accompany Rule 1.16
recognize that:

        Difficulty may be encountered if withdrawal is based on
        the client's demand that the lawyer engage in
        unprofessional conduct.      The court may wish an
        explanation for the withdrawal, while the lawyer may be
        bound to keep confidential the facts that would
        constitute such an explanation. The lawyer's statement
        that professional considerations require termination of
        the representation ordinarily should be accepted as
        sufficient. (emphasis supplied).


                                          -9-
the plaintiff and his counsel were able to air their dispute

through   plaintiff's     motion      for    reconsideration   and    subsequent

filings   which    confirmed     that       their   relationship     had   become

acrimonious.      Since plaintiff had represented himself during the

first year and a half that this case was pending and trial was

still two months away when the court denied reconsideration, the

court could reasonably assume that allowing withdrawal would not

have a material adverse effect on plaintiff.               The district court

gave plaintiff      a   fair   shot    at    finding   successor     counsel   and

opposing the defendants' motion for summary judgment by granting

plaintiff the extensions he requested.

     If more were needed, we note that the record suggests that

plaintiff and his counsel had at least one serious disagreement

over what the rules of professional conduct required plaintiff's

counsel to do in light of defense counsel's inadvertent disclosure

of a privileged communication.              This alone supplies "good cause"

for withdrawal. The district court did not abuse its discretion by

allowing plaintiff's counsel to withdraw.

     Similarly, the district court did not abuse its discretion by

denying plaintiff's motion to amend his complaint.                    Insofar as

plaintiff sought to add a separate legal malpractice claim against

attorney Garvey and Sulloway and Hollis, his proposed amended

complaint both failed to state a viable claim and was unsupported




                                       -10-
by the record.     See Hatch v. Dep't of Children, Youth and Their

Families,   274   F.3d   12,   19   (1st   Cir.    2001).   The   defendants'

submissions showed that plaintiff could not reasonably have relied

on any comment attorney Garvey might have made about the statute of

limitations when plaintiff filed this lawsuit because attorney

Garvey expressly warned plaintiff not to rely on Sulloway and

Hollis at that point.     See Sheinkopf v. Stone, 927 F.2d 1259, 1264-

65 (1st Cir. 1991)(attorney-client relationship may be implied only

where record shows purported client's reliance on attorney was

objectively reasonable or that attorney knowing of such reliance

did nothing to negate it)(citation omitted).5

     We also reject plaintiff's contentions that the district court

should have disqualified Sulloway and Hollis in response to the

allegations raised in plaintiff's motion to amend his complaint and

that this court should do so now.6                To be sure, an attorney's

fiduciary duties may be triggered by an initial consultation even

if employment does not result. See, e.g., Westinghouse              Electric

Corp. v. Kerr-McGee Corp., 580 F.2d 1311 (7th Cir. 1978); Polyagro


     5
       It is also clear that plaintiff had decided to sue attorney
Gannon and WS&P before he contacted Sulloway and Hollis and that
plaintiff voluntarily dismissed his bankruptcy appeal after
attorney Gannon properly withdrew from it.     Plaintiff has only
himself to blame for the loss of this avenue of review.
     6
        We reject defendants' claim that plaintiff has waived the
disqualification issue. "Failures to object, unless a true waiver
is involved, are almost always subject to review for plain error."
See Chestnut v. City of Lowell, 305 F.3d 18, 19 (1st Cir. 2002)(en
banc)(per curiam).

                                     -11-
Plastics, Inc. v. Cincinnati Milacron, Inc., 903 F. Supp. 253, 256

(D.P.R. 1995).       And the fact that the defendants' submissions

showed that Sulloway and Hollis never represented plaintiff in this

lawsuit does not necessarily mean that plaintiff did not disclose

confidential      information      to   attorney    Garvey   that    might   have

disqualified Sulloway and Hollis from defending this case.                   But

even   if   we    assume    that    plaintiff      made   such   a   disclosure,

disqualification was not required absent some showing that this

gave defendants an unfair advantage in this case.                See Kevlik v.

Goldstein, 724 F.2d 844, 848 (1st Cir. 1984)(holding dilatory

disqualification motions may be granted when either the court's

confidence in the attorney's vigorous representation of his client

is threatened or the attorney is in a position to use privileged

information to the unfair advantage of the new client)(citations

omitted).        Plaintiff made no such showing.             Absent an actual

adverse effect, "merely 'conducting [a] trial with counsel that

should have been disqualified does not "indelibl[y] stamp or taint"

the proceedings.'"         See Fiandaca v. Cunningham, 827 F.2d 825, 831

(1st Cir. 1987)(citations omitted).            Similarly, because plaintiff

has failed to show how any alleged conflict on the part of defense

counsel tainted the summary judgment proceedings, he is not due a

second bite at the apple now.

                           III.




                                        -12-
       Finally, we turn to the summary judgment. Like the bankruptcy

court, the district court assumed that plaintiff's Connecticut

whistleblower and free speech claims both rested on the theory that

BEX fired him in retaliation for his anonymous complaint to the

FAA.    On appeal, plaintiff argues that this was error, that his

"true § 31-51q claim" did not require him to prove that BEX knew

about his complaint to the FAA, and that the district court

erroneously overlooked this claim and failed to view the record in

the light most favorable to him.           We recognize that the district

court overlooked certain evidence (e.g., the Costa tape) and that

the court did not address what plaintiff now says was his "true §

31-51q" claim.     Even when we account for these omissions, the

record fails to show that attorney Gannon's alleged malpractice

even arguably caused the loss of plaintiff's retaliatory discharge

claims.

       We review the district court's decision de novo, mindful that

"on a motion for summary judgment all reasonable inferences must be

drawn in favor of the non-moving party, regardless of who bears the

ultimate burden of proof." See Douglas v. York County, 360 F.2d

286, 288 (1st Cir. 2004).         The record discloses that plaintiff

worked for BEX for approximately one year, during which he commuted

to BEX's Westport, Connecticut headquarters from his home in Long

Ann, New Jersey. Sometimes, plaintiff was late for work. Although

plaintiff   insists   that   it   was   all   a   fabrication,   the   OUCC's



                                    -13-
evidence before the bankruptcy court disclosed that plaintiff was

late       at    least     five   times   before     he   engaged     in    any    arguably

protected         conduct.        Indeed,      on   January    4,   1994,    plaintiff's

supervisor (DiPaola) warned plaintiff that he would be terminated

if he was late once more.7

       On January 29, 1994, plaintiff made an anonymous telephone

complaint to the FAA about BEX's shortstaffing.                       On the following

day, plaintiff made similar complaints to BEX managers O'Brien and

Heller in two separate telephone conversations that plaintiff

secretly          tape-recorded.8         In    these     conversations,          plaintiff

protested the fact that he was scheduled to work the next day

(1/31/94) even though he had not had enough time off to rest to

enable          him   to   dispatch   aircraft       safely.        Although      plaintiff

emphasized that BEX should employ enough staff to operate its

airline safely, he also complained that BEX had scheduled him to

work in retaliation for a grievance that he had previously filed,

and he only agreed to work (and indeed, did work) after Heller

assured him that he would be paid time and a half for his efforts.

A few days            after that (i.e., on 2/4/94), BEX supervisor Heller

called plaintiff into his office and, after noting that plaintiff

had once worked for the FAA, warned plaintiff that he would be

fired if he was late for work again or if he released a flight

       7
        The district court erroneously attributed this warning to
supervisor Heller. The Heller warning came one month later.
       8
            Heller eventually realized that he was being taped.

                                            -14-
late.    BEX records indicate that plaintiff thereafter was late

several more times before his February 28th discharge.

     Plaintiff       maintains    that   the     foregoing     chain     of   events

suffices to prove that BEX fired him in retaliation for his 1/29/94

anonymous complaint to the FAA (in violation of § 31-51m and § 31-

51q),    and,   if   not   for   that,   then    for     his   1/30/94   telephone

complaints to managers O'Brien and Heller (in violation of § 31-51q

only).    We disagree.     The record shows only that it was just barely

possible that the FAA investigated plaintiff's complaint, and there

was no evidence that, if any such investigation occurred, it

occurred    under    circumstances       that    would    have    suggested     that

plaintiff had triggered the investigation.                 On this record, the

proffered admissible evidence was simply too weak and speculative

to permit a rational factfinder to infer that BEX fired plaintiff

for whistleblowing.         Thus, summary judgment on this aspect of

plaintiff's legal malpractice claim was proper.                  See 5 R. Mallen &

J. Smith, Legal Malpractice, § 33.11, p. 87 (5th ed. 2000)("A

possibility is not sufficient to allow an issue to go to the jury,

even if the attorney's negligence impaired the client's ability to

marshal the necessary evidence.").              See also, Witte v. Desmarais,

614 A.2d 116, 120-21 (N.H. 1992)(causation is not for jury where

reasonable minds can not differ on the outcome); Arnone v. Town of

Enfield, 831 A.2d 260, 267 (Conn. 2003)(holding plaintiff must

"produce sufficient evidence to remove the jury's function of



                                     -15-
examining   inferences   and   finding    facts       from   the   realm   of

speculation").9

      Similarly, we conclude that no reasonable jury could find that

BEX   discharged   plaintiff   "on   account    of"    the   safety-related

statements that he made to his supervisors in the context of

complaining about his work schedule.      See, e.g., Lowe v. Amerigas,

Inc., 52 F. Supp. 2d 349 (D.Conn. 1999)(citations omitted). On this

record, the evidence of plaintiff's tardiness that was before the

bankruptcy court remains essentially unimpeached.            As the district

court correctly noted, the report of plaintiff's aviation expert

did nothing to undermine the evidence of plaintiff's tardiness.

Plaintiff's unsupported claims of fabrication add nothing to his

case. See Fennell v. First Step Designs, Ltd., 83 F.3d 526, 533-37

(1st Cir. 1996).     The record shows that, saddled with a lengthy

commute, plaintiff was sometimes late for work notwithstanding

repeated warnings.    Even when the evidence attorney Gannon did not

offer is factored into the picture, no reasonable jury could find

that plaintiff's complaints to the FAA or to BEX managers prompted

his discharge.     Therefore, the district court did not err by

granting    defendants   summary     judgment    on     plaintiff's    legal

malpractice claims.

      9
       Contrast, LaFond v. General Physics Services Corp., 50 F.3d
165 (2d cir. 1995)(vacating summary judgment where plaintiff
himself informed employer of his whistleblowing activity). Here
plaintiff has not suggested that he told anyone at BEX that he had
complained to the FAA.


                                   -16-
     The appellees' motion to file a sur-reply brief is allowed.

The judgment of the district court is summarily affirmed. See Loc.

Rule 27(c).




                              -17-
