Free Order on Motion to Withdraw as Attorney - District Court of California - California

Case 3:08-cv-00456-W-BLM

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 PATRICIA NEALY, as surviving heir of MAURICE WHITE, deceased, vs. Plaintiff, CASE NO. 08-CV-0456 W (BLM) ORDER GRANTING MOTION TO BE RELIEVED OF COUNSEL (Doc. No. 14) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

THE CITY OF SAN DIEGO, et al., Defendants. On March 11, 2008 Defendants City of San Diego et al. ("Defendants") removed

17 Plaintiff Patricia Nealy's ("Nealy") negligence and civil rights action to this Court. 18 (Doc. No. 1.) Pending before the Court is law firm San Diego Trial Group's ("SDTG") 19 and law firm Hoey & Morgan's ("Hoey") motion to be relieved as Plaintiff Nealy's 20 counsel of record. (Doc. No. 14.) The Court considers the matter on the papers 21 submitted and without oral argument. See S.D. Cal. Civ. R. 7.1(d)(1). For the 22 following reasons, the Court GRANTS SDTG's and Hoey's motion to be relieved as 23 Nealy's counsel of record. (Doc. No. 14.) 24 /// 25 /// 26 /// 27 /// 28 ///
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1 I. 2

BACKGROUND On March 11, 2008 Defendants removed Nealy's negligence and civil rights

3 action to this Court. (Doc. No. 1.) Nealy was originally represented by SDTG. On 4 April 22, 2008 Hoey and SDTG filed a notice of association of counsel that added Hoey 5 as an attorney on the case. (Doc. No. 5.) On April 28, 2008 Magistrate Judge Major 6 held an early neutral evaluation conference where Nealy was represented by Hoey. 7 (Doc. No. 7.) On May 28, 2008 Hoey again represented Nealy at Magistrate Judge 8 Major's case management conference. (Doc. No. 9.) 9 Nothing further appears on the docket until August 1, 2008, when SDTG and 10 Hoey moved to withdraw as Nealy's attorneys of record. (Doc. No. 10.) SDTG and 11 Hoey state that continued representation will result in an unreasonable financial burden 12 and that Nealy has become unresponsive to their correspondence. (Mot. 3.) SDTG and 13 Hoey further represent that they provided Nealy with all pertinent dates in this matter, 14 have taken reasonable steps to avoid prejudicing Nealy's rights, and have given Nealy 15 substantial time to seek new counsel. (Id. 4.) SDTG and Hoey have served a copy of 16 their motion on Nealy, which clearly states in non-technical language the consequences 17 of granting the motion and suggests steps to avoid future prejudice. (Id. 2; Hoey 18 Decl.¶ 4.) None of the opposing parties appearing in this suit have opposed this motion. 19 Nor has Plaintiff Patricia Nealy opposed the motion or voiced an opinion in any way. 20 21 22 II. 23 LEGAL STANDARD & ANALYSIS An attorney may not withdraw as counsel except by leave of court. Darby v. City

24 of Torrance, 810 F. Supp. 276, 276 (C.D. Cal. 1992). The decision to grant or deny 25 counsel's motion to withdraw is committed to the discretion of the trial court. LaGrand 26 v. Stewart, 133 F.3d 1253, 1269 (9th Cir. 1998). 27 Some factors that courts consider when ruling upon motions to withdraw as 28 counsel are: (1) the reasons why withdrawal is sought; (2) the prejudice withdrawal may
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1 cause to other litigants; (3) the harm withdrawal might cause to the administration of 2 justice; and (4) the degree to which withdrawal will delay the resolution of the case. 3 Liang v. Cal-Bay Int'l, Inc., 2007 U.S. Dist. LEXIS 81660 at *2 (S.D. Cal. Oct. 24, 4 2007). 5 Federal courts generally look to applicable state rules of professional conduct 6 when deciding whether to excuse counsel from further representation in a particular 7 case. 12 Schwarzer, Tashima & Wagstaffe, CAL. PRAC. GUIDE: FED. CIV. PRO. BEFORE 8 TRIAL, 12:192 (The Rutter Group 2007). In California, an attorney may request 9 permission to withdraw if the client's conduct renders it unreasonably difficult for the 10 attorney to carry out the employment effectively. Cal. R. Prof. C. 3-700(C)(1)(d). In 11 such cases, the attorney must take reasonable steps to avoid reasonably foreseeable 12 prejudice to the client's rights, including giving due notice to the client, allowing time 13 for employment of other counsel, and providing the client with all client papers and 14 property. Cal. R. Proc. C. 3-700(A)(2); Ramirez v. Sturdevant, 26 Cal. Rptr. 2d 554, 15 559 (Cal. Ct. App. 1994). 16 SDTG and Hoey have shown good cause to be relieved as counsel of record. 17 Because Nealy has been unresponsive and further employment will cause the law firms 18 to undertake an unreasonable financial burden, it is impracticable for SDTG and Hoey 19 to continue their representation. No other party has opposed SDTG and Hoey's request 20 or voiced any opinion as to how they might be prejudiced by SDTG and Hoey's 21 withdrawal. As there are no pending motions or imminent responsibilities, SDTG and 22 Hoey's withdrawal will not significantly undermine Nealy's ongoing prosecution. Nealy 23 has been aware of SDTG and Hoey's motion since at least August 1, 2008 and the law 24 firms have apprised Nealy of all upcoming critical dates and deadlines. Currently, there 25 is no trial date set; any delay or disruption to the administration of justice will be slight. 26 Finally, the Court notes that SDTG and Hoey have properly served their client with 27 notice pursuant to the Local Rules. 28 ///
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1 III. 2

CONCLUSION For the aforementioned reasons, the Court finds good cause to allow the SDTG

3 and Hoey law firms to withdraw from the representation of Plaintiff Patricia Nealy. 4 Accordingly, the Court GRANTS SDTG and Hoey's motion to withdraw as counsel, 5 effective immediately. (Doc. No. 14.) 6 7 8 9 DATED: September 5, 2008 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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IT IS SO ORDERED.

Hon. Thomas J. Whelan United States District Judge