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Eirich v. Astrue

June 28, 2009

STEVEN G. EIRICH, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER VACATING THE HEARING ON THE MOTION OF COUNSEL TO WITHDRAW

(DOC. 23)

Vacated hearing date: July 17, 2009

ORDER GRANTING PLAINTIFF'S COUNSEL'S MOTION TO WITHDRAW AS PLAINTIFF'S ATTORNEY OF RECORD

(DOC. 22)

ORDER GRANTING STIPULATED REQUEST FOR AN EXTENSION OF TIME FOR THE FILING OF PLAINTIFF'S BRIEF TO NO LATER THAN AUGUST 1, 2009

(DOC. 21)

ORDER DIRECTING THE CLERK TO UPDATE THE DOCKET AND TO SERVE THIS ORDER ON PLAINTIFF HIMSELF AT THE ADDRESS SPECIFIED IN THIS ORDER

Plaintiff is proceeding in forma pauperis and with counsel with an action seeking judicial review of a final decision of the Commissioner of Social Security (Commissioner) denying Plaintiff's application for benefits. By order dated August 18, 2008, and pursuant to the consent of the parties, the matter was assigned to the Magistrate Judge for all proceedings, including the entry of final judgment, pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73(b), and Local Rule 73-301,.

Pending before the Court is the motion of Steven G. Rosales of the law offices of Lawrence D. Rohlfing to withdraw as attorney of record for Plaintiff, which was served on Defendant and Plaintiff and filed on June 4, 2009. The motion included a notice and motion to withdraw as attorney of record, a supporting memorandum, and a declaration of Mr. Rosales. The Court issued a briefing order that was served on Plaintiff on June 8, 2009, setting deadlines for the filing of any opposition and reply thereto; no opposition was filed, and Defendant filed a statement of non-opposition to the motion to withdraw on June 24, 2009.

The Court has reviewed all the documents submitted in connection with the motion.

I. The Motion to Withdraw as Attorney of Record

Moving attorney Steven G. Rosales declares under penalty of perjury that after undertaking representation of Plaintiff and reviewing the administrative record, he informed Plaintiff in late February 2009 of his opinion concerning his analysis of the file and the case's issues, and counsel requested permission to proceed based on the analysis. No response was received. Counsel contacted Plaintiff by telephone in March 2009, and on the second occasion of contact, Plaintiff terminated the telephone call without authorizing counsel to proceed.

Counsel states that he does not believe that he can effectively represent Plaintiff based on an opinion that is counter to Plaintiff's desires, and further that pursuit of this action by counsel could subject counsel to sanctions under Rule 11. There is no indication from Plaintiff or counsel that Plaintiff has either ...


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