UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ARDITH CAVALLO; LAWRENCE
CAVALLO,
Plaintiffs-Appellants,

v.
                                                                    No. 97-1707
STAR ENTERPRISE; TEXACO
REFINING AND MARKETING (EAST),
INCORPORATED; SAUDI REFINING, INC.,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-94-1499-A)

Argued: March 4, 1998

Decided: July 7, 1998

Before MURNAGHAN, ERVIN, and WILKINS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Allen Huberth Sachsel, Fairfax, Virginia, for Appellants.
Richard Edward Wallace, Jr., HOWREY & SIMON, Washington,
D.C., for Appellees. ON BRIEF: Anthony F. King, Nancy C. Libin,
HOWREY & SIMON, Washington, D.C., for Appellees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The appellants, Ardith and Lawrence Cavallo (the"Cavallos"),
plaintiffs below, appeal the district court's entry of summary judg-
ment in the appellees' favor on two related grounds. The Cavallos
argue that the district court abused its discretion by permitting the
Cavallos' retained counsel to withdraw one month before the pretrial
conference. The Cavallos further maintain that the district court vio-
lated their due process right to retain counsel by ordering that the pre-
trial conference would take place as scheduled despite counsel's
withdrawal. We conclude that the district court did not abuse its dis-
cretion in granting counsel leave to withdraw. Furthermore, we find
no impermissible infringement upon the Cavallos' due process rights.
Accordingly, we affirm.

I

In November 1994, Ardith and Lawrence Cavallo filed suit against
Star Enterprise, Texaco Refining and Marketing (East), Inc., and
Saudi Refining, Inc. (collectively, "Star") in the United States District
Court for the Eastern District of Virginia. In a four-count complaint,
the Cavallos sought compensatory and punitive damages for injuries
to person and property allegedly caused by vapors from an under-
ground plume of petroleum products.

The Cavallos retained Mark Hayes, Esq., as counsel. In accordance
with the retainer agreement, which authorized Hayes to associate
other counsel, Hayes engaged the services of Donnell R. Fullerton,
Esq., and John E. Drury, Esq. (referred to collectively as "Hayes"),
who entered appearances for the Cavallos.

On January 20, 1995, the district court dismissed three of the Cav-
allos' four claims against Star pursuant to Fed. R. Civ. P. 12(b)(6).

                     2
After extensive discovery by both parties, the district court entered
summary judgment in favor of Star on the sole remaining count. The
Cavallos appealed.

Hayes designated Drury to present oral argument on the Cavallos'
behalf before this court. The Cavallos, however, strongly opposed the
designation of Drury and engaged substitute counsel to present oral
argument. Upon Hayes' unopposed motion, a panel of the court
granted Hayes leave to withdraw as appellate counsel on March 18,
1996.

The Cavallos prevailed in part on their appeal, and the case was
remanded to the district court for further proceedings. Cavallo v. Star
Enter., 100 F.3d 1150 (4th Cir. 1996) (reversing dismissal of Counts
II, III, and IV, and affirming summary judgment on Count I). On Jan-
uary 6, 1997, the district court scheduled a pretrial conference on the
remanded claims for February 20, 1997. The scheduling order
instructed counsel to bring to the conference lists of witnesses and
exhibits to be introduced at trial, and cautioned that failure to comply
would result in the exclusion of evidence from trial, except for pur-
poses of impeachment or rebuttal.

On January 10, 1997, Hayes sought leave to withdraw as counsel
in the district court. In a sworn affidavit, Hayes asserted that contin-
ued representation of the Cavallos had been rendered unreasonably
difficult by irreconcilable differences over the proper conduct of the
case. Hayes claimed that the Cavallos had rejected his legal advice on
numerous occasions, that they commonly threatened Hayes with mal-
practice suits, and that their communications had been "abusive, acri-
monious, or insulting to counsel and their staff." Although Hayes did
not furnish details of the disagreements, he offered to provide addi-
tional testimony in camera if the district court deemed it necessary.
Hayes assured the district court that withdrawal would not prejudice
the Cavallos, explaining that the Cavallos had retained two lawyers*
who were well acquainted with the case and with whom Hayes had
spoken several times.
_________________________________________________________________
*Hayes was referring to Allen Sachsel, whom the Cavallos had
retained as appellate counsel, and William A. Beeton, Jr., who opposed
the withdrawal motion on the Cavallos' behalf.

                    3
Star did not oppose or endorse the motion, but simply indicated
resistance to any development that would cause further delay. Noting
that the Cavallos had participated in no fewer than six lawsuits, Star
asserted the Cavallos were "experienced litigators" and urged the
court to proceed on schedule even if Hayes were permitted to with-
draw.

Vehemently denying that irreconcilable differences existed, the
Cavallos opposed Hayes' motion to withdraw. The Cavallos argued
that the retainer agreement obligated Hayes to continue representation
of the Cavallos through the culmination of trial, and claimed that
withdrawal would be highly prejudicial in light of the imminent pre-
trial conference.

On January 17, 1997, without a hearing, the district court granted
the motion to withdraw, and instructed Hayes to advise the Cavallos
that the case would go forward at the pretrial conference on February
20 "with or without counsel." That evening, Hayes delivered to the
Cavallos 22 storage boxes containing documents relevant to their
case.

On January 21, Star moved the court to limit the Cavallos' time to
respond to certain discovery requests to 20 days. Although the motion
was served upon the Cavallos at their residence, the Cavallos failed
to respond or to appear at the hearing on the motion. The magistrate
judge granted Star's motion on January 28, 1997, giving the Cavallos
until February 5, 1997, to respond.

When the Cavallos failed to respond to Star's discovery requests
within the allotted time, Star filed a motion for discovery sanctions
pursuant to Fed. R. Civ. P. 37. Again, the Cavallos failed to respond
or to appear at the hearing on Star's motion. Although Star's request
to dismiss the case was denied, the magistrate judge entered an order
precluding the Cavallos from introducing at trial any evidence respon-
sive to Star's discovery requests on February 21, 1997. The Cavallos
filed a one-sentence objection to the order on March 10.

On February 11, the Cavallos wrote to the district court with a
request to extend the scheduling order to permit the Cavallos time to
retain new counsel. The district court granted the Cavallos' request

                    4
for an extension of time and rescheduled the pretrial conference for
March 20, 1997.

On March 19, the Cavallos again wrote to the district court,
explaining that they had been unable to secure counsel to replace
Hayes and were uncertain how to proceed. The Cavallos did not
appear for the March 20 pretrial conference.

On March 20, the district court informed the Cavallos that their let-
ter had been received that morning, but the pretrial conference had
proceeded as scheduled and that trial would commence on May 6. As
a consequence of their failure to appear and to file the requisite lists
of exhibits and witnesses, the Cavallos were advised that they would
be unable, at trial, to present any evidence other than their own testi-
mony.

Star subsequently moved for summary judgment. In response, the
Cavallos again complained that they had been unsuccessful in obtain-
ing replacement counsel and objected that they were not being given
a fair opportunity to press their case, but did not respond to Star's
arguments on the merits. The district court granted Star's motion for
summary judgment on April 18, 1997, and the Cavallos noted a
timely appeal.

II

The Cavallos have argued that the district court abused its discre-
tion in permitting trial counsel to withdraw. They maintain that the
grounds asserted by Hayes in support of the motion to withdraw were
unfounded, and that counsel's withdrawal severely prejudiced the
Cavallos' ability to pursue their claims against Star.

We are persuaded, however, that the district court acted within its
discretion in permitting Hayes to withdraw, for it is apparent from the
record that the mutual trust and confidence required to sustain the
attorney-client relationship had deteriorated beyond repair. The Cav-
allos' disagreement with Hayes over the designation of counsel for
oral argument in this court, culminating in the Cavallos' termination
of Hayes as appellate counsel, evidences an acute lack of faith in

                    5
Hayes' advice. That fact alone belies the Cavallos' claim that the
irreconcilable differences alleged by Hayes referred to nothing more
than a minor disagreement. Moreover, the district court was entitled
to rely on Hayes' assertions that the Cavallos had disregarded his
legal advice on numerous other occasions, and that the Cavallos'
communications with Hayes and his staff had become both acrimoni-
ous and abusive. See Stafford v. Mesnik, 63 F.3d 1445, 1449 (7th Cir.
1995) (holding that "the court did not abuse its discretion in relying
on the statement of an officer of the court."). Similarly, we find no
abuse of discretion in the district court's reliance on Hayes' state-
ments that the Cavallos had retained two attorneys, Sachsel and Bee-
ton, who were familiar with the instant litigation and could continue
to represent the Cavallos' interests, notwithstanding the fact that both
attorneys ultimately refused to accept the role of trial counsel.

The Cavallos have also claimed that their right to due process was
violated by the district court's order commanding Hayes to advise the
Cavallos that the pretrial conference would go forward on schedule
"with or without counsel." Although the right to counsel in the civil
context is not coextensive with that of a criminal defendant, a civil lit-
igant does have a constitutional right to retain counsel. See Gray v.
New England Tel. and Tel. Co., 792 F.2d 251, 257 (1st Cir. 1986);
Potashnik v. Port City Constr. Co., 609 F.2d 1101, 1117 (5th Cir.
1980) (holding that "the right to retain counsel in civil litigation is
implicit in the concept of fifth amendment due process."). In deter-
mining whether the right has been violated, our inquiry focuses on
whether the litigant has been deprived of a reasonable opportunity to
retain counsel. See Gray, 792 F.2d at 257.

The district court's order allowed the Cavallos slightly more than
one month to obtain substitute counsel. We recognize that one month
is not a substantial amount of time, particularly where, as here, the
case is complex and trial imminent. Nevertheless, we cannot say on
the facts of this case that the district court's actions deprived the Cav-
allos of the opportunity to retain counsel. The district court subse-
quently granted the sole extension of time requested by the Cavallos.
Although the Cavallos have repeatedly complained, in the district
court and on appeal, that it would have been impossible to retain
counsel in the time allotted, the record does not contain persuasive
evidence of unsuccessful efforts to hire substitute counsel. Moreover,

                     6
counsel, preparing to represent the Cavallos, could have appeared and
advanced salient reasons for postponement of the commencement of
trial. Also relevant is Star's interest in bringing the instant litigation
to a conclusion after more than two years of pretrial proceedings.
Finally, the Cavallos' asserted difficulty in retaining substitute trial
counsel cannot excuse their complete failure even to attempt to fulfill
their obligations in the ongoing litigation.

Therefore, we hold that the district court did not commit reversible
error by permitting Hayes to withdraw or by ordering that the pretrial
conference would take place as scheduled. Accordingly, the judgment
of the district court is hereby

AFFIRMED.

                     7
