(PC) Melendez v. Diaz ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN MELENDEZ, ET AL., Case No. 1:20-cv-01393-ADA-CDB (PC) 12 Plaintiffs, ORDER DENYING ATTORNEY’S REQUEST TO BE RELIEVED AS TO 13 v. PLAINTIFFS ALEJANDRINO MANJARAZ AND PHILLIP BERNARD 14 DIAZ, ET AL., (Doc. 46) 15 Defendants. 16 17 18 Plaintiffs Phillip Bernard (“Bernard”) and Alejandrino Manjaraz (“Manjaraz”) are 19 proceeding through counsel with a civil rights action pursuant to 42 U.S.C. § 1983. This action is 20 set for jury trial before the Honorable Ana de Alba on February 6, 2024. (Doc. 44). 21 On April 3, 2023, Attorney Dennis Shawn Burkley filed an “Attorney’s Request to Be 22 Relieved as to Plaintiffs Alejandrino Manjaraz and Phillip Bernard.” (Doc. 46). Attorney 23 Burkley’s request avers that he repeatedly tried to contact Bernard and Manjaraz for several 24 months with no success. Attorney Burkley represents that he is no longer able to make accurate 25 representations to the Court or to Defendants as to whether Manjaraz and Bernard desire to 26 actively prosecute their case. (Id.) Attorney Burkley’s withdrawal would render plaintiffs 27 Bernard and Manjaraz in propria persona. An attorney who has appeared may not withdraw leaving the client in propria persona 1 without leave of court and notice to the client, as well as all other parties who have appeared. 2 E.D. Cal. Local Rule 182(d). In addition, under Local Rule 182(d) requires as follows: 3 The attorney shall provide an affidavit stating the current or last known address or addresses of the client and the efforts made to 4 notify the client of the motion to withdraw. Withdrawal as attorney is governed by the Rules of Professional Conduct of the State Bar of 5 California, and the attorney shall conform to the requirements of those Rules. The authority and duty of the attorney of record shall 6 continue until relieved by order of the Court issued hereunder. Leave to withdraw may be granted to such appropriate conditions as the 7 Court deems fit. 8 (Id.) Attorney Burkley has not provided an affidavit stating the current or last known addresses 9 of Manjaraz or Bernard. In addition, there is no indication that Attorney Burkley has conformed 10 with the Rules of Professional Conduct of the State Bar of California. The California Rules of 11 Professional Conduct require that: 12 (d) A lawyer shall not terminate a representation until the lawyer has taken reasonable* steps to avoid reasonably* foreseeable prejudice 13 to the rights of the client, such as giving the client sufficient notice to permit the client to retain other counsel, and complying with 14 paragraph (e). 15 (e) Upon the termination of a representation for any reason: 16 (1) subject to any applicable protective order, non-disclosure agreement, statute or regulation, the lawyer promptly shall release to 17 the client, at the request of the client, all client materials and property. “Client materials and property” includes correspondence, 18 pleadings, deposition transcripts, experts' reports and other writings,* exhibits, and physical evidence, whether in tangible, 19 electronic or other form, and other items reasonably* necessary to the client's representation, whether the client has paid for them or 20 not; and 21 (2) the lawyer promptly shall refund any part of a fee or expense paid in advance that the lawyer has not earned or incurred. This provision 22 is not applicable to a true retainer fee paid solely for the purpose of ensuring the availability of the lawyer for the matter. 23 California Rule of Professional Conduct 1.16.1 See Chapman v. Ramada Inn, Vallejo, No. 2:16- 24 cv-02415-KJM-DB, 2019 WL 13258030, *1-2 (E.D. Cal. Mar. 11, 2019). 25 For the foregoing reasons, the Court finds that counsel have not satisfied their duty to 26 comply with either Local Rule 182(d) or with California Rule of Professional Conduct 1.16. 27 1 The asterisks identify words or phrases defined by California Rule of Professional 1 | Accordingly, the Court DENIES Attorney Burkley’s request to withdraw, without prejudice to 2 | renewal upon curing the deficiencies noted above. 3 | IT IS SO ORDERED. “| Dated: _ April 6, 2023 | D bo 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28