McGhee v. Chavez ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Joseph McGhee, No. CV-23-08041-PCT-DWL 10 Plaintiff, ORDER 11 v. 12 Fernando Chavez, et al., 13 Defendants. 14 15 Pending before the Court is the motion to withdraw as counsel of record without 16 client consent (Doc. 6) filed by Plaintiff’s “Limited Scope Representative,” Elizabeth 17 Sawyer (“Counsel”).1 18 Ninth Circuit law suggests a “justifiable cause” standard applies when, as here, the 19 client doesn’t affirmatively consent to the withdrawal request. Lovvorn v. Johnston, 118 20 1 Before this case was removed to federal court, Counsel filed a notice stating that 21 she is Plaintiff’s “Limited Scope Representative” pursuant to Rule 5.3(c) of the Arizona Rules of Civil Procedure. (Doc. 1-3 at 88.) Under that rule, an attorney “may withdraw 22 from the action” “[u]pon an attorney’s completion of the representation specified in the Notice of Limited Scope Representation.” Ariz. R. Civ. P. 5.3(c)(4). If the client does not 23 submit a signed consent to the withdrawal, the Court may “hold a hearing on whether the attorney has completed the limited scope representation for which the attorney has 24 appeared.” Ariz. R. Civ. P. 5.3(c)(4)(B)(i). If the client files an objection to the withdrawal, the Court “must” hold a hearing. Ariz. R. Civ. P. 5.3(c)(4)(B)(ii). Counsel 25 does not seek to withdraw pursuant to this provision, and it appears obvious that she has not completed the representation specified in the Notice of Limited Scope Representation, 26 which includes, inter alia, “[r]epresenting client at trial.” (Doc. 1-3 at 88.) At any rate, it is not clear that an attorney may make such a limited appearance under this Court’s rules. 27 See LRCiv 83.3(a) (“[N]o attorney shall appear in any action or file anything in any action without first appearing as counsel of record. An attorney of record shall be deemed 28 responsible as attorney of record in all matters before and after judgment until the time for appeal expires or until there has been a formal withdrawal from or substitution in the case.”) 1 F.2d 704, 706 (9th Cir. 1941) (“An attorney may not, in the absence of the client’s consent, 2 withdraw from a case without justifiable cause; and then only after proper notice to his 3 client, and on leave of the court.”). “Justifiable cause” is not a terribly demanding standard, 4 and the professional considerations listed in ER 1.16 will often satisfy it, so long as other 5 factors don’t outweigh those considerations. Gagan v. Monroe, 2013 WL 1339935, *4 (D. 6 Ariz. 2013) (“Factors that a district court should consider when ruling upon a motion to 7 withdraw as counsel include: (1) the reasons why withdrawal is sought; (2) the prejudice 8 withdrawal may cause to other litigants; (3) the harm withdrawal might cause to the 9 administration of justice; and (4) the degree to which withdrawal will delay the resolution 10 of the case.”); Bohnert v. Burke, 2010 WL 5067695, *2 (D. Ariz. 2010) (“Any factors that 11 might support [counsel’s] motion to withdraw are outweighed by the Court’s responsibility 12 to manage its own case load and ensure [fairness] to all parties. . . . [T]he Court finds that 13 the interests of justice will be best served if [counsel] remains available to assist and try 14 this case as he agreed to do when he entered his notice of appearance in 2009.”). “[T]he 15 trial court retains wide discretion in a civil case to grant or deny counsel’s motion to 16 withdraw.” Bohnert, 2010 WL 5067695 at *1. “When ordered to do so by a tribunal, a 17 lawyer shall continue representation notwithstanding good cause for terminating the 18 representation.” Ariz. R. Prof’l. Cond. ER 1.16(c). 19 Here, the Court is unable to determine how much Counsel’s reasons weigh in favor 20 of withdrawal because the Court has no idea what Counsel’s reasons are. Local Rule 21 83.3(b) provides that the application to withdraw must set forth the reasons for the 22 withdrawal. Counsel avers that “a conflict” exists “that prevents her from continuing the 23 representation pursuant to ER 1.16 of the Arizona Rules of Professional Conduct.” (Doc. 24 6 at 1.) However, Counsel does not specify what the “conflict” is. Furthermore, in the 25 Court’s experience, attorneys sometimes identify any reason listed in ER 1.16 as a 26 “conflict” requiring withdrawal, although in fact, certain listed reasons do not force an 27 attorney to violate any ethical rules and do not constitute circumstances where the attorney 28 “shall” withdraw but merely establish that the attorney “may” withdraw, unless the tribunal 1 orders continued representation. Compare Ariz. R. Prof’l. Cond. ER 1.16(a) with 2 ER1.16(b). See, e.g., Brown v. City of Glendale, 2:18-cv-01267-DWL, Doc. 64 at 3 (a 3 client’s failure to pay does not “somehow force[] [an attorney] to violate any ethical rules 4 if required to keep litigating [the] case” but is merely a reason “why the firm would prefer 5 to withdraw.”), Hoppmann v. Pampered Pets & Plants Incorporated et al, 2:22-cv-00427- 6 DWL, Doc. 47 at 5 (“Far from being ‘an unwaivable conflict of interest’ that ‘necessitates 7 Applicants’ withdrawal,’ a client’s failure to pay is a circumstance through which attorneys 8 often continue representation. Continued representation where a client fails to pay would 9 not violate any rule of professional conduct and withdrawal is not mandatory under the 10 circumstances.”). The reasons listed in ER 1.16 run the gamut from the client’s failure to 11 timely pay his attorney to the client’s persistent criminal or fraudulent acts. In short, some 12 of the reasons are more compelling than others. The Court cannot weigh whether the 13 reasons for withdrawal are outweighed by the harm withdrawal might cause to Plaintiff or 14 to the administration of justice without knowing those reasons. 15 The Court cannot exercise its discretion to grant or deny a motion to withdraw 16 without knowing the reason(s) justifying withdrawal.2 United States v. Williams, 717 F.2d 17 473, 475 (9th Cir. 1983) (“A trial court’s decision to release counsel is an exercise of its 18 discretion”); Woodall v. Drake Hotel, Inc., 913 F.2d 447, 449–50 (7th Cir. 1990) 19 (“[C]ounsel bore the burden of demonstrating that [the clients] had consented to the motion 20 . . . or that there was a valid and compelling reason for the court to allow the withdrawal 21 over objection. . . . Because class counsel never disclosed, and the court never compelled 22 counsel to disclose, the reason for withdrawal, the court abused its discretion by granting 23 the motion.”); Behr v. Drake Hotel, Inc., 1991 WL 33661, *1 (N.D. Ill. 1991) 24 (“Class counsel have now come forward in writing with detailed reasons for withdrawal, 25 to which both [clients] have responded in writing. In order to preserve the attorney- 26 2 The Court recognizes that the comments to ER 1.16 state that a non-specific avowal “that professional considerations require termination of the representation ordinarily 27 should be accepted as sufficient.” The Court respectfully disagrees. Such an assertion is too vague to allow the Court to exercise its discretion in any meaningful way or to ensure 28 that “justifiable cause” truly exists to support the withdrawal request. 1 client privilege, class counsel and [the clients] have filed affidavits and exhibits 2 under seal for our review in camera. Having carefully reviewed all of the submissions we 3 find that valid and compelling reasons exist for granting withdrawal.”). 4 By requiring Counsel to submit an ex parte affidavit under seal3 in support of the 5 withdrawal motion and allowing Plaintiff the opportunity to respond (again, ex parte and 6 under seal), the Court can gain the information it needs to appropriately balance the 7 withdrawal factors while ensuring that no communications assertedly protected by 8 attorney-client privilege are disclosed to the public or to Defendants. See, e.g., Sabre Int’l 9 Security v. Torres Advanced Enterprise Solutions, LLC, 219 F. Supp. 3d 155, 158-59 10 (D.D.C. 2016) (“Numerous courts have reviewed . . . affidavits under seal to ascertain the 11 basis of the motion to withdraw without upsetting the attorney-client privilege.”); Team 12 Obsolete Ltd. v. A.H.R.M.A. Ltd., 464 F.Supp.2d 164, 165-66 (E.D.N.Y. 2006) (“A review 13 of the relevant case law demonstrates that documents in support of motions to withdraw as 14 counsel are routinely filed under seal where necessary to preserve the confidentiality of the 15 attorney-client relationship between a party and its counsel, and that this method is viewed 16 favorably by the courts.”). 17 On the other hand, if Counsel can obtain Plaintiff’s written consent, no affidavit will 18 be necessary, as this Court generally grants motions to withdraw as counsel with client 19 consent, absent unusual circumstances not present here. 20 Accordingly, 21 IT IS ORDERED that by April 12, 2023, Counsel shall file one of the following: 22 (1) Plaintiff’s written consent to the withdrawal, (2) an ex parte affidavit under seal, 23 explaining the reasons justifying withdrawal, together with proof of service of this order 24 and the affidavit on Plaintiff, or (3) a retraction of the motion to withdraw. 25 … 26 … 27 … 28 3 . For Plaintiff’s benefit: “ex parte” means Defendants cannot see it, and “under seal” means the public cannot see it. 1 IT IS FURTHER ORDERED that if Counsel files and serves on Plaintiff an || ex parte affidavit under seal, explaining the reasons justifying withdrawal, Plaintiff may file an ex parte response under seal by April 26, 2023. 4 Dated this 29th day of March, 2023. Po Dominic W. Lanza 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _5-