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Latwahn Mcelroy v. Roy Cox

October 12, 2011

LATWAHN MCELROY,
PLAINTIFF,
v.
ROY COX, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL FOR DEFENDANT ROCHA (Doc. 84.)

ORDER REQUIRING CLERK OF COURT TO SERVE A COPY OF THIS ORDER ON DEFENDANT ROCHA AT HIS ADDRESS OF RECORD, TO BE KEPT CONFIDENTIAL ORDER REQUIRING CLERK OF COURT TO EFFECT SERVICE OF ANY FILING IN THIS ACTION BY PLAINTIFF OR OTHER DEFENDANTS ON DEFENDANT ROCHA AT ADDRESS TO BE KEPT CONFIDENTIAL

I. BACKGROUND

Latwahn McElroy ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on August 19, 2008. (Doc. 1.) This action now proceeds with the original Complaint against defendants Correctional Officer ("C/O") Roy Cox, C/O B. Cope, C/O R. Robles, C/O Paul Rocha, C/O Thomas Acosta, C/O Sherri Stinnett, and LVN M. Hankins, for excessive force and deliberate indifference in violation of the Eighth Amendment.

On August 11, 2011, Defendants' counsel filed a motion seeking to withdraw as counsel for Defendant Rocha and a declaration, under seal, in support of the motion. (Docs. 84, 88.) More than twenty-one days have passed and neither Defendant Rocha nor any other party has filed a response to the motion. Local Rule 230(l).

II. MOTION TO WITHDRAW AS COUNSEL FOR DEFENDANT ROCHA

Defendants' counsel, Phillip L. Arthur of the Attorney General's Office, seeks to withdraw as counsel of record for Defendant Rocha on the grounds that Rocha's failure to cooperate with defense counsel has rendered it impossible to provide legal services in an appropriate manner. In the Eastern District of California, the conduct of counsel is governed by the Rules of Professional Conduct required of members of the State Bar of California. Local Rule 182(d) addresses the standards for an attorney withdrawing as an attorney. Local Rule 182(d) reads in part:

[A]n attorney who has appeared may not withdraw leaving the client in propria persona without leave of Court upon noticed motion and notice to the client and all other parties who have appeared. The attorney shall provide an affidavit stating the current or last known address or addresses of the client and the efforts made to notify the client of the motion to withdraw. Withdrawal as attorney is governed by the Rules of Professional Conduct of the State Bar of California, and the attorney shall conform to the requirements of those Rules. The authority and duty of the attorney of record shall continue until relieved by order of the Court issued hereunder. Leave to withdraw may be granted subject to such appropriate conditions as the Court deems fit.

Local Rule 182(d). Under the Rules of Professional Conduct of the State Bar of California, an attorney may request permission to withdraw for certain reasons. California Rules of Professional Conduct, Rule 3-700(C) provides as follows:

(C) Permissive Withdrawal.

If rule 3-700(B) is not applicable, a member may not request permission to withdraw in matters pending before a tribunal, and may not withdraw in other matters, unless such request or such withdrawal is because:

(1) The client

(a) insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, ...


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