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Carlson v. Clapper

United States District Court, N.D. California, San Jose Division

June 26, 2019

CRAIG CARLSON, et al., Plaintiffs,
ROCK CLAPPER, et al., Defendants.



         Counsel for defendants ScanX, Inc. (“ScanX”) and Rock Clapper, David Nemecek and The Fortress Law Firm, Inc., move to withdraw from representation of defendants pursuant to Civil Local Rule 11-5. Dkt. No. 44. Plaintiff Carlson Produce opposes the motion. Dkt. No. 49. The Court heard oral argument on counsel's motion on June 25, 2019. Dkt. No. 53.

         Having considered the parties' moving papers, the Court grants counsel's motion to withdraw, subject to certain conditions set forth below.

         I. BACKGROUND

         On November 28, 2018, plaintiffs Craig Carlson and Carlson Produce, Inc. (“Carlson Produce”) filed this action against defendants ScanX and Mr. Clapper. Dkt. No. 1. After two motions to dismiss, the only remaining claims are Carlson Produce's claims for breach of contract and quantum meruit against ScanX only, and Carlson Produce's claim for fraud against both ScanX and Mr. Clapper. Dkt. Nos. 26, 45. Mr. Carlson is no longer a plaintiff in the case.

         Neither Mr. Clapper nor ScanX has filed any objections with the Court concerning their counsel's request to withdraw from representation.


         Under 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.” Until the client obtains other representation, motions to withdraw as counsel may be granted on the condition that current counsel continue to serve on the client all papers from the court and from the opposing parties. Civ. L.R. 11-5(b).

         The California Rules of Professional Conduct govern withdrawal from representation. Nehad v. Mukasey, 535 F.3d 962, 970 (9th Cir. 2008) (applying California Rules of Professional Conduct to attorney withdrawal); see also Dieter v. Regents of Univ. of Cal., 963 F.Supp. 908, 910 (E.D. Cal. 1997). Rule 1.16[1] describes the circumstances in which an attorney may withdraw from representation. These include situations where “the client . . . renders it unreasonably difficult for the lawyer to carry out the representation effectively” and where “the client breaches a material term of an agreement with, or obligation, to the lawyer relating to the representation.” Cal. R. Prof'l Conduct 1.16(b)(4), (5).

         Even where circumstances permit withdrawal, counsel may not “terminate a representation until [counsel] has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client . . . .” Cal. R. Prof'l Conduct 1.16(d). These steps include (1) giving the client sufficient notice to permit the client to retain other counsel; (2) at the client's request, promptly releasing the client's materials and property to the client; and (3) promptly refunding any part of a fee or expense paid in advance that the lawyer has not earned or incurred. Cal. R. Prof'l Conduct 1.16(d), (e).

         The decision to permit counsel to withdraw is within the sound discretion of the trial court. United States v. Carter, 560 F.3d 1107, 1113 (9th Cir. 2009). Courts consider several factors when deciding a motion for withdrawal, including: “(1) the reasons counsel seeks to withdraw; (2) the possible prejudice that withdrawal may cause to other litigants; (3) the harm that withdrawal might cause to the administration of justice; and (4) the extent to which withdrawal will delay resolution of the case.” Deal v. Countrywide Home Loans, No. 09-CV-01643-SBA, 2010 WL 3702459, at *2 (N.D. Cal. Sept. 15, 2010).


         Defendants' counsel seeks permission to withdraw from representation on the grounds that defendants have breached the attorney-client fee agreement and that their conduct has rendered it unreasonably difficult for him to carry out the representation effectively. Dkt. No. 44 at 2.

         Carlson Produce does not dispute that defendants' counsel has provided sufficient reasons for withdrawal from representation. Rather, Carlson Produce's sole objection is that counsel's withdrawal will delay this action, thereby prejudicing Carlson Produce. Dkt. No. 47 at 2. In particular, Carlson Produce contends that it has served written discovery on defendants, and defendants' responses are due July 1, 2019. Carlson Produce says it has also noticed the deposition of Mr. Clapper for July 31, 2019. Id. Carlson Produce's objections regarding delay are not well taken. As defendants' counsel observes, Carlson Produce took no steps to obtain any discovery in this matter until after it filed its opposition to counsel's motion to withdraw, which suggests that Carlson Produce's concerns about ...

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