United States District Court, N.D. California
ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL RE DKT.
A. WESTMORE UNITED STATES MAGISTRATE JUDGE.
C. Volker moves to withdraw as Plaintiff California
Environmental Protection Association's counsel. (Mot. to
Withdraw, Dkt. No. 11.) Plaintiff did not file an opposition
to Attorney Volker's motion to withdraw. The Court held a
hearing on the motion on April 20, 2017; [Attorney Volker
appeared at the hearing, but Plaintiff did not.]
reviewed the parties' filings, the Court GRANTS Attorney
Volker's motion to withdraw as counsel.
filed the instant case on July 12, 2016, alleging violations
of the National Pollutant Discharge Elimination System permit
requirements of the Clean Water Act. (Compl. ¶ 1, Dkt.
No. 1.) The complaint has not been served on Defendant
Denbeste Yard & Garden, Inc. (See Dkt. No. 10.)
On January 3, 2017, the Court granted Plaintiff's request
to continue deadlines by 90 days, including the time to serve
Defendant and conduct the required meet and confer regarding
initial disclosures, alternative dispute resolution, and
discovery. (Id.) This was the second extension
granted by the Court. (See Dkt. No. 8.)
March 9, 2017, Plaintiff's counsel moved to withdraw as
attorney. In his declaration, Attorney Volker explained that
Plaintiff had failed to reimburse his firm for case costs
within 30 days of counsel's presentation of such costs to
Plaintiff. (Volker Decl. ¶ 3; Dkt. No. 11.) Attorney
Volker also stated there was a breakdown in communications.
(Volker Decl. ¶ 6.) Specifically, Attorney Volker would
contact Plaintiff's president, Mr. Gerard Duenas, seeking
contact information on Plaintiff's Board of Directors and
members allegedly harmed by Defendants' violations, as
well as identification of evidence "essential to
compliance with the requirements of Rule 26(a)(1) of the
Federal Rules of Civil Procedure regarding 'Initial
Disclosure' of such information." (Volker Decl.
¶ 4.) Despite repeated attempts for such information,
Attorney Volker was "unable to secure prompt, accurate
and complete information from Mr. Duenas." In the
motion, Attorney Volker also notes that "relatedly,
ethical considerations require withdrawal of counsel."
(Mot. to Withdraw at 3.)
December 1, 2016, Attorney Volker informed Mr. Duenas by
phone that the failure to communicate "rendered it
unreasonably difficult" to continue representing
Plaintiff. (Volker Decl. ¶ 6.) Attorney Volker stated he
would request to be withdrawn as counsel unless Plaintiff
substituted other counsel to represent it. On December 29,
2016, Attorney Volker reminded Mr. Duenas of his intent to
withdraw by mail and e-mail. Attorney Volker also explained
to Mr. Duenas that because Plaintiff was a corporation,
"it could not appear in propria persona and
would need to secure substitute counsel." Attorney
Volker's letter also gave "detailed reasons
compelling our withdrawal." (Id.)
January 17, 2017, Mr. Duenas responded to Attorney Volker by
letter, declining to assent to Attorney Volker's
withdrawal as counsel. (Volker Decl. ¶ 7.) Attorney
Volker also asserts that Plaintiff failed to find and refused
to substitute new counsel, "and that the communication
failure necessitating this motion to withdraw have not been
March 9, 2017, Attorney Volker moved to withdraw as counsel.
On March 10, 2017, Attorney Volker filed a proof of service,
stating that he arranged for service of the motion to
withdraw of counsel to Plaintiff by e-mail and mail. (Dkt.
No. 12.) [As of the date of this order, no opposition has
been filed by Plaintiff.]
Civil Local Rule 11-5(a), "[c]ounsel may not withdraw
from an action until relieved by order of Court after written
notice has been given reasonably in advance to the client and
to all other parties who have appeared in the case." The
rule further provides that:
When withdrawal by an attorney from an action is not
accompanied by simultaneous appearance of substitute counsel
or agreement of the party to appear pro se, leave to withdraw
may be subject to the condition that papers may continue to
be served on counsel for forwarding purposes, unless and
until the client appears by other counsel or pro se. When
this condition is imposed, counsel must notify the party of
this condition. Any filed consent by the party to
counsel's withdrawal under these circumstances must
include acknowledgment of this condition.
Civil L.R. 11-5(b).
is governed by the California Rules of Professional Conduct.
Nehad v. Mukasey, 535 F.3d 962, 970 (9th Cir. 2008)
(applying California Rules of Professional Conduct to
withdrawal by attorney). California Rule of Professional
Conduct 3-700(C) sets forth several grounds under which an
attorney may request permission to withdraw. Counsel may
withdraw from representation in any matter in which the
client "breaches an agreement or obligation to the
member as to expenses or fees, " has made it
"unreasonably difficult for the member to carry out the
employment effectively, " or "knowingly and freely
assents to termination of the employment." Cal. Rules of
Prof'l Conduct 3-700(C)(1)(d), (f) & (C)(5). The
court has discretion to grant or deny a motion to withdraw,
and it can exercise that discretion, and decide to deny such
a motion, "where such withdrawal would ...