United States District Court, E.D. California
ORDER GRANTING MOTION TO WITHDRAW AS ATTORNEY OF
RECORD (DOC. 17)
SHEILA
K. OBERTO, UNITED STATES MAGISTRATE JUDGE
I.
INTRODUCTION
On June
27, 2016, Denise Haley, counsel for Plaintiff Joseph Luise
McKenny (“Plaintiff”), filed a Motion to Withdraw
as Attorney of record, along with the Declaration of Denise
Haley in support of the Motion. (Doc. 17.) Defendant Carolyn
W. Colvin, Acting Commissioner of Social Security
(“Defendant”) filed a statement of non-opposition
(Doc. 22), and Plaintiff has not responded. The matter is
therefore deemed unopposed and submitted on the pleadings.
Upon
reviewing the motion and supporting documentation, the Court
finds that the matter is suitable for decision without oral
argument pursuant to Rule 230(g) of the Local Rules of the
United States District Court, Eastern District of California
(“Local Rules”); as such, the hearing set for
August 3, 2016, is VACATED. For the reasons set forth below,
counsel’s Motion to Withdraw is GRANTED.
II.
DISCUSSION
A.
The Motion to Withdraw as Attorney of Record
Moving
counsel Denise Haley states that after undertaking
representation of Plaintiff in September 2015, and reviewing
the administrative record, she directed another attorney from
her firm, Laura Krank, to contact Plaintiff on June 23, 2016,
[1] via
telephone to inform him of counsel’s opinion that she
could not pursue the case on Plaintiff’s behalf.
(Declaration of Denise Haley (“Haley Decl.”),
Doc. 17, at ¶ 3.) Ms. Krank conveyed this information to
Plaintiff on June 27, 2016, and Plaintiff informed her that
he did not wish to dismiss and would try to find other
counsel. (Haley Decl., Doc. 17, at ¶ 3.) At of the time
the motion was filed, Plaintiff had not advised counsel of
the retention of alternative counsel, had not authorized a
substitution of attorney, nor had he authorized counsel to
dismiss the action with or without prejudice. (Haley Decl.,
Doc. 17, ¶ 4.)
Local
Rule 182(d) sets forth specific requirements for the
withdrawal of counsel where, as here, the attorney will leave
the client in propria persona, as follows:
Unless otherwise provided herein, an 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 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.
Here, counsel has complied with the Local Rule. Ms.
Haley’s motion includes a Proof of Service
demonstrating that, on June 27, 2016, counsel mailed a copy
of the motion to Plaintiff at 36211/2 Delta Avenue. (Doc. 17,
p. 7.) On July 6, 2016, Ms. Haley filed a Proof of Service of
the Court’s minute order setting the briefing schedule
and hearing date on Plaintiff at his current or last known
address: 2389 S. Lilly Street. (Doc. 23.) Because these
addresses were inconsistent, the Court ordered counsel to
file a supplemental declaration establishing that service of
the motion was made upon Plaintiff at his current or last
known address at 2389 S. Lilly Street. (Doc. 24.) Ms. Haley
filed a declaration explaining that service of the motion was
made at an incorrect address, and a proof of service that
notice of the motion and a copy of the motion had been mailed
to Plaintiff at 2389 S. Lilly Street on July 15, 2016. (Docs.
25, 27.) The Court continued the hearing to allow Plaintiff
sufficient time to respond to the motion, and required
Plaintiff’s opposition, if any, to be filed by no later
than July 27, 2016. (Doc. 26; see also Doc. 28
(proof of service of the Court’s minute order resetting
hearing and setting forth briefing schedule upon Plaintiff).)
No opposition was timely filed, and the matter was deemed
unopposed and submitted upon the pleadings. (Doc. 30.)
Local
Rule 182 provides that an attorney may request withdrawal if
grounds exist pursuant to the Rules of Professional Conduct
of the State Bar of California. See L.R. 182(d)
(“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”). Cal. Rules of Prof. Conduct, Rule
3-700(C)(1)(a) provides for withdrawal with the permission of
a tribunal if the client “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,
modification, or reversal of existing law.”
Fed.R.Civ.P. 11(b)(2) provides that by “presenting to
the court a pleading, written motion, or other paper
--whether by signing, filing, submitting, or later advocating
it -- an attorney or unrepresented party certifies that to
the best of the person’s knowledge, information, and
belief, formed after an inquiry reasonable under the
circumstances . . . [that] he claims, defenses, and other
legal contentions are warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing
existing law or for establishing new law.” Finally,
Cal. Rules Prof. Conduct, Rule 3-700(C)(6) permits withdrawal
if “the member believes in good faith, in a proceeding
pending before a tribunal, that the tribunal will find the
existence of good cause for withdrawal.”
Here,
counsel believes, in good faith, that her continued
representation of Plaintiff would violate Fed.R.Civ.P.
11(b)(2). Under Cal. Rules of Prof. Conduct, Rule
3-700(C)(1)(a), withdrawal is, therefore, permissible. The
Court finds and concludes that counsel has established
grounds for withdrawal. Accordingly, the Motion to Withdraw
as Attorney of Record will be GRANTED.
B.
Extension of Time to File Plaintiff’s Opening
Brief
Local
Rule 182(d) provides that “[l]eave to withdraw may be
granted subject to such appropriate conditions as the Court
deems fit.” Pursuant to the Court’s Order on the
parties’ Stipulation to Extend Time to File Opening
Brief entered June 1, 2016 (Doc. 16), Plaintiff’s
opening brief was due June 26, 2016 -- one day before the
filing of the present motion. To allow time for Plaintiff to
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