United States District Court, N.D. California
ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL FOR
PLAINTIFF RE: DKT. NO. 56
HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE.
before the Court is a motion to withdraw as counsel by Sherri
L. Kelly, attorney for Plaintiff Scott Feamster. Dkt. No. 56
(“Mot.”). Ms. Kelly seeks to withdraw as counsel
for Mr. Feamster on the basis that there has been an
irreparable breakdown in the attorney-client relationship
“to the point where it is now impossible for Kelly to
continue to represent Feamster and to take the necessary
litigation strategies and steps to continue to pursue and
protect his best interest.” Mot. at 2. Ms. Kelly
further contends that Mr. Feamster “has not paid Kelly
for fees and costs incurred in this action pursuant to [their
fee agreement].” Id. Ms. Kelly informed Mr.
Feamster on May 14, 2019 that he “should search for and
retain new counsel.” Id. at 3. On June 11,
2019, Ms. Kelly notified Mr. Feamster of her intent to
withdraw, and subsequently filed the pending motion with the
Court on June 27, 2019. Id. at 3. Defendant has not
opposed this motion.
18, 2019, the Court held a hearing, which was attended by Ms.
Kelly, Mr. Feamster, and defense counsel. At the hearing, the
Court discussed in camera the reasons for Ms. Kelly's
motion. Based on the relevant legal authority, the papers,
and the representations made at the hearing, the Court
GRANTS the motion.
District, “[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.” Civil
L.R. 11-5(a). Moreover, “[w]hen 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.” Civil L.R. 11-5(b).
is also governed by the California Rules of Professional
Conduct. See j2 Glob. Commc'ns, Inc. v. Blue Jay,
Inc., No. C 08-4254 PJH, 2009 WL 464768, at *1 (N.D.
Cal. Feb. 24, 2009)); see also Civil L.R. 11-4(a)(1)
(requiring compliance with the California Rules of
Professional Conduct). Under these rules, permissive
withdrawal may only be granted by leave of the Court. CA ST
RPC, Rule 3-700(A)(1). The professional rules provide for
permissive withdrawal on various grounds, including when
“[t]he client . . . breaches an agreement or obligation
to the member as to expenses or fees, ” or when
“[t]he member believes in good faith . . . that the
tribunal will find the existence of other good cause for
withdrawal.” Id., Rule 3-700(C)(1), (6).
However, an attorney may not withdraw before he or she
“has taken reasonable steps to avoid reasonably
foreseeable prejudice to the rights of the client, including
giving due notice to the client, allowing time for employment
of other counsel, complying with rule 3-700(D), and complying
with applicable laws and rules.” Id., Rule
3-700(A)(2); see also id., Rule 3-700(D) (regarding
the refund of fees and the release of property and papers).
courts assessing withdrawal balance the equities, considering
such factors as why counsel seeks to withdraw and whether
permitting withdrawal may prejudice other litigants, harm the
administration of justice, or delay the case's
resolution. Robinson v. Delgado, No. CV 02-1538 NJV,
2010 WL 3259384, at *2 (N.D. Cal. Aug. 18, 2010) (citing
Local Rule 11-5(a) is satisfied because the filing of the
motion nearly a month ago gave all parties reasonable advance
notice of withdrawal, and because Plaintiff's counsel
gave notice to her client long before filing the motion.
See Mot. at 3. The filing of the motion was also
permitted by the California Rules of Professional Conduct.
Based upon the information discussed during the in camera
portion of the hearing, the Court is persuaded that
Plaintiffs counsel filed the motion with a good faith belief
that there is good cause for withdrawal. CA ST RPC, Rule
3-700(C)(6). At the hearing, Mr. Feamster acknowledged that
there has been an irreparable breakdown in his relationship
with Ms. Kelly, but was concerned about impending deadlines
and having sufficient time to seek new counsel. Balancing the
equities, the Court finds that permitting withdrawal is just,
while imposing certain conditions (described below) to
minimize delay and prejudice. See Robinson, 2010 WL
3259384, at *2 (discussing equities). All told, the Court
finds in the exercise of its discretion that withdrawal is
warranted. See Gong v. City of Alameda, No. C
03-05495 THE, 2008 WL 160964, at *1 (N.D. Cal. Jan. 8, 2008).
necessary, Mr. Feamster may appear pro se in federal court.
But to minimize any potential prejudice to Mr. Feamster, the
Court provides Mr. Feamster six weeks to obtain new counsel
and stays all deadlines in the interim. During this period,
the Court directs Plaintiffs counsel to accept service of
papers for forwarding to Mr. Feamster. See Civil
L.R. 11-5(b). And if Mr. Feamster is unable to obtain counsel
by August 29, 2019, he will proceed in this action pro
se. In that event, Mr. Feamster must: (1) file a short
statement with the Court on August 29, 2019 indicating that
he was unable to retain counsel; and (2) provide the Court
with his contact information, so that he may be served as an
individual going forward.
the Court GRANTS the motion to withdraw as
counsel, subject to the foregoing conditions.