Lankford v. Taylor ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kirk Lankford, No. CV-17-02797-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Joseph Taylor, et al., 13 Defendants. 14 15 The law firm of Dickinson Wright PLLC (the “Firm”) requests that the Court permit 16 the Firm to file under seal its ex parte Declaration of Counsel explaining the bases 17 permitting withdrawal as counsel of record for Plaintiff Kirk Lankford. (Doc. 131.) That 18 request is granted. 19 As for the merits of the withdrawal request, the bases provided in the declaration 20 are fairly sparse. The Court notes that, at this juncture, it is too late to appoint new pro 21 bono counsel. The Final Pretrial Conference is set for January 31, 2022. It is unlikely that 22 replacement pro bono counsel could be found—and that replacement counsel could be 23 prepared for the Final Pretrial Conference—by this date. Indeed, the history of this case 24 demonstrates that the appointment of pro bono counsel causes lengthy delay. On March 25 5, 2020, the Court granted Plaintiff’s motion for court assistance and noted that it would 26 appoint pro bono counsel once a volunteer attorney was located. (Doc. 78.) It took two 27 months to locate and appoint the Firm. (Doc. 79.) The original date of the Final Pretrial 28 Conference (April 6, 2020) had to be vacated to allow time for counsel to be appointed and 1 to get up to speed. (Doc. 78.) After the Firm made its notice of appearance on May 6, 2 2020, the Court reset the Final Pretrial Conference for August 10, 2020. (Doc. 81.) In 3 other words, locating counsel and allowing time for counsel to prepare delayed the case by 4 four months.1 Locating replacement counsel and allowing time for replacement counsel to 5 prepare would cause another lengthy delay. This case has been pending for over four years, 6 and further delay would threaten the speedy administration of justice and the Court’s 7 management of its docket. The order setting the Final Pretrial Conference issued on 8 January 13, 2020—nearly two years ago. 9 Thus, if the Firm is permitted to withdraw, new pro bono counsel will not be 10 appointed, and Plaintiff will be required to represent himself at trial. That outcome avoids 11 further delay. Although the Court initially appointed counsel because it evaluated 12 “plaintiff’s ability to articulate his claims in light of the complexity of the legal issues 13 involved” and determined that “exceptional circumstances” existed for the appointment of 14 counsel (Doc. 79 at 1-2 [quoting Agyeman v. Corrections Corp. of Am., 390 F.3d 1101, 15 1103 (9th Cir. 2004)]), the circumstances have now changed. If, as the declaration 16 suggests, Plaintiff simply prefers to litigate without the assistance of the Firm, that is his 17 choice to make. But Plaintiff is not entitled to the serial appointment of new counsel under 18 the circumstances. 19 With that said, although the declaration suggests that Plaintiff wants the Firm to 20 withdraw its representation, it does not explicitly say so. 21 If Plaintiff does not want the Firm to withdraw, the Court harbors doubt as to 22 whether the declaration establishes the kind of circumstances that would permit withdrawal 23 at this juncture. Ninth Circuit law suggests a “justifiable cause” standard applies when the 24 client doesn’t affirmatively consent to a withdrawal request. Lovvorn v. Johnston, 118 25 F.2d 704, 706 (9th Cir. 1941) (“An attorney may not, in the absence of the client’s consent, 26 withdraw from a case without justifiable cause; and then only after proper notice to his 27 client, and on leave of the court.”). “Justifiable cause” is not a terribly demanding standard, 28 1 The COVID-19 pandemic caused further lengthy delays. 1 || and the professional considerations listed in ER 1.16 will often satisfy it, so long as other 2|| factors don’t outweigh those considerations. Gagan v. Monroe, 2013 WL 1339935, *4 (D. □□ Ariz. 2013) (“Factors that a district court should consider when ruling upon a motion to 4|| withdraw as counsel include: (1) the reasons why withdrawal is sought; (2) the prejudice 5 || withdrawal may cause to other litigants; (3) the harm withdrawal might cause to the 6 || administration of justice; and (4) the degree to which withdrawal will delay the resolution 7\| of the case.”); Bohnert v. Burke, 2010 WL 5067695, *2 (D. Ariz. 2010) (“Any factors that 8 || might support [counsel’s] motion to withdraw are outweighed by the Court’s responsibility || to manage its own case load and ensure [fairness] to all parties... □ [T]he Court finds that 10 || the interests of justice will be best served if [counsel] remains available to assist and try 11 || this case as he agreed to do when he entered his notice of appearance in 2009.”). Thus, if || Plaintiff opposes the withdrawal request by the November 29, 2021 deadline specified via 13 || previous order, the Firm is on notice that any reply it files in support of its withdrawal || request should address the relevant factors in more detail. 15 Accordingly, 16 IT IS ORDERED that the Firm’s motion to seal (Doc. 131) is granted. The Clerk 17 || of Court shall file under seal the ex parte declaration lodged at Doc. 132. 18 IT IS FURTHER ORDERED that Plaintiff shall, by November 29, 2021, file a 19 || response to the motion to withdraw as counsel indicating whether he consents to the 20 || withdrawal. If Plaintiff consents or does not file a response, the motion will be granted and Plaintiff will represent himself at trial. 22 IT IS FURTHER ORDERED that the Firm shall ensure that Plaintiff receives a 23 || copy of this Order by November 19, 2021 and shall assist Plaintiff if he needs help filing a 24 || response. 25 Dated this 17th day of November, 2021. 26 27 Lom ee” 28 f CC —— Dominic W. Lanza United States District Judge -3-