UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
May 4, 2012
MANDY EVA LOUISE ALEC,
COUNTY OF CALAVERAS, ET AL.,
The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER CONTINUING HEARING ON
THE MOTION TO WITHDRAW AS
ATTORNEYS OF RECORD
ORDER REQUIRING TELEPHONIC
Relevant Procedural Background
On August 18, 2011, Defendants County of Calaveras and Sheriff Gary Kuntz removed this matter from Calaveras County on the basis of federal question jurisdiction. (Doc. 1.) At the time her complaint was filed in the state court, Plaintiff Mandy Eva Louise Alec was represented by attorneys Jeffrey A. Silvia and Peter J. Whipple. (Doc. 1, Ex. A.)
On September 29, 2011, Silvia filed an Association of Counsel wherein he advised the Court that Michael F. Babitzke had become associated with the matter as co-counsel for Plaintiff. (Doc. 4.)
On March 8, 2012, a Motion to be Relieved as Counsel was filed on behalf of Mr. Silvia and Mr. Babitzke as Plaintiffs' counsel. The moving papers assert that "good grounds for withdrawal exist under the Rules of Professional Conduct," and indicate that, if necessary, Silvia and Babitzke will supply the Court with a sealed affidavit or testify as to the particulars of the conflict. The motion seeks to have Plaintiff represent herself. Plaintiff and counsel for the defense were served with the motion. (Doc. 21.)
On May 1, 2012, a Declaration of Peter J. Whipple was filed in support of the motion. *fn1
Whipple declared he has had very little involvement in this case, indicating that he was involved only in preparation of the complaint that was filed in the state court. Further, Whipple declared that it was his "understanding that when Mr. Babitzke associated in as counsel that [his] involvement in this matter was to cease." (Doc. 23.)
Neither Mr. Babitzke nor Mr. Silvia appeared at the hearing on their motion. Rather, attorney Robert Shapiro specially appeared on behalf of Mr. Babitzke only. Mr. Whipple did not appear. Plaintiff did not appear.
Counsel for Plaintiff are advised that Mr. Shapiro lacks sufficient knowledge of this motion to answer the Court's inquiries about Plaintiff's legal representation. The Court will not relieve counsel, potentially leaving Plaintiff in the absence of legal representation, without having the opportunity to hear directly from involved counsel. Counsel for Plaintiff are further advised that a motion to withdraw is not a proceeding for which counsel should arrange to have another attorney make a special appearance, depriving the Court of its opportunity to inquire into the nature of the conflict or otherwise inquire into the status of legal representation for the plaintiff.
In light of the foregoing, this Court orders as follows:
1. The hearing on the pending motion is CONTINUED to May 25, 2012, at 9:30 a.m. in Courtroom 10 before the undersigned;
2. All counsel of record for Plaintiff - specifically, Silvia, Babitzke and Whipple -SHALL appear in person or telephonically *fn2 and be prepared to answer the Court's inquiries regarding their representation; and,
3. Mr. Whipple, should he intend to withdraw, SHALL file a motion to withdraw as attorney of record, no later than May 11, 2012.
IT IS SO ORDERED.